Green, Michael v. Butler, Marlo

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-2993

MICHAEL J. GREEN and

CHERYL POULSEN,

Plaintiffs-Appellants,

v.

MARLO BUTLER, DAVID CARROLL,

MARK SALSBERRY, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 3120—Charles P. Kocoras, Chief Judge.

____________

ARGUED MAY 4, 2005—DECIDED AUGUST 24, 2005

____________

Before RIPPLE, ROVNER and WOOD, Circuit Judges.

RIPPLE, Circuit Judge. Michael Green and Cheryl Poul-

sen rented a room in their residence to a state parolee,

Michael Belter. The named Illinois parole agents (“the

agents” or “the State”) entered the residence to search

Belter, prompting Mr. Green and Ms. Poulsen to file this

§ 1983 action for violations of their rights under the

Fourth Amendment. The district court granted summary

judgment to the agents, holding that Mr. Green and Ms.

2 No. 04-2993

Poulsen failed to demonstrate a Fourth Amendment vio-

lation and, in the alternative, that the officers enjoyed

qualified immunity. Mr. Green and Ms. Poulsen appeal the

grant of summary judgment. For the reasons set forth in

the following opinion, we reverse the judgment of the

district court and remand for further proceedings.

I

BACKGROUND

A. Facts

In February 2003, Mr. Green owned a home in

Warrenville, Illinois, where he resided with his girlfriend,

Ms. Poulsen. Mr. Green also rented a room in the house to

Belter, “[a] long-time acquaintance” of Mr. Green’s. R.29

at 1. Belter had been convicted in state court of criminal

sexual assault against a minor. At the time of the search,

he was on parole and electronically monitored.

As a condition of his parole, Belter executed a “Host Site

Agreement” when he moved into the residence. He identi-

fied himself as the host and did not indicate that anyone else

lived at the residence.1 As relevant here, the agreement

1

It is apparent that the Host Site Agreement’s purpose was

to ensure that the homeowner—Mr. Green—knew that the

parolee was subject to search at any time and consented to such

search. The form’s introductory provision stated: “I, ___[Host’s

Name]___, voluntarily agree to allow ___[Offender’s Name]___,

to reside at my residence . . . .” R.26, Ex.16. The “I” in the consent

provision thus referred to the host, not the offender.

Belter listed his own name in both the “Host’s Name” and

“Offender’s Name” spaces, placed his own initials next to

(continued...)

No. 04-2993 3

provided: “I [the undersigned] understand that my resi-

dence is subject to search at any time by parole agents or

designated Illinois Department of Corrections’ [sic] staff and

I explicitly consent thereto.” R.26, Ex.16. Mr. Green knew

that Belter was on parole, but neither he nor Ms. Poulsen

knew about the Host Site Agreement or its conditions. There

is some evidence that Belter’s parole agent, Richard Guise,

knew that Belter lived with Mr. Green; according to Belter,

Guise told him to execute the agreement in the way that he

did because it was merely a “technicality.” R.28 at 12. When

Guise retired, Belter’s file was transferred first to parole

agent Jeffrey Bryant. Bryant apparently knew that Belter

lived with Mr. Green because at one point Belter asked

Bryant to stop calling him at the residence telephone

number because the calls had caused problems with his

host. After a short period, Belter’s file again was transferred

to parole agent Marlo Butler, who repeatedly received

computer status updates indicating that Belter lived alone.

On February 23, 2003, Butler and Bryant made a routine

visit to Belter’s residence. Belter answered the door, quickly

stepped outside and shut the door behind him. The agents

asked to enter the residence, but Belter refused to let them.

Belter informed the agents that he was renting a room, that

the owner, Mr. Green, was not at home but would return

soon and that Mr. Green would not want them to come

inside. The agents asked Belter to inform Mr. Green that

they would return later that afternoon and left without

entering the residence.

Butler then called fellow parole agent Mark Salsberry.

1

(...continued)

each condition and signed over the space labeled “Host’s

Signature.”

4 No. 04-2993

Later that day, Salsberry, together with agents David Carroll

and Amy Freund, were briefed by Butler and Bryant at a

nearby restaurant parking lot. They met for up to fifteen

minutes, during which time the agents checked the depart-

ment computer files, which still indicated that Belter lived

alone. The agents agreed that they should return to the

residence, determine why Belter had refused them entry and

explain the parole conditions to him. Bryant’s entry in the

computer system confirmed that purpose: “AGTS CAME BY

A SECOND TIME TO GO OVER WITH HOST H/S [Host

Site] AGREEMENT AND PROGRAM RULES.” R.28 at 22.

There is no indication that the agents believed that they, or

anyone else in the home, were in danger or that the home

contained evidence of a crime.

Meanwhile, Mr. Green and Ms. Poulsen had returned to

the residence. Belter told his host of the parole agents’ visit

and informed him that they would return. Mr. Green went

out to the garage while Ms. Poulsen and Belter remained

in the house. When the agents returned, the garage door

was open, and they saw Mr. Green. Carroll and Butler

entered the garage. According to Mr. Green, “David Carroll

said ‘Where is Mike Belter?’ as he was going through the

garage, and I said ‘He’s in the house.’ He brushed me

aside with his arm and stated ‘This is what you get for

not cooperating.’” R.26, Ex.2 at 51. The two agents exited the

garage through a side door and, together with Salsberry and

Freund (Bryant remained near the street), opened and

entered through the unlocked front door of the residence,

with Mr. Green following. The parties dispute whether

the agents first knocked and announced their presence

before entering, and it is not clear whether Belter saw them

approach or whether the agents or a house occupant opened

No. 04-2993 5

the door.2 According to Ms. Poulsen, the first agent to enter

2

It appears that the “door” to Mr. Green’s home is actually

two doors—a glass storm door and a wooden interior door. It

is not clear if either door was open, nor is it clear where

Belter was located, who let the agents into the residence, or

whether the agents knocked before entering.

Belter indicated in his deposition that he was in the basement

with some friends when the door (presumably the basement

door, after the agents had entered) flew open and Carroll

called his name. R.26, Ex.9 at 66.

According to Ms. Poulsen, both doors were closed and the

agents neither knocked nor announced their presence before

entering. A “very big heavyset gentleman”—it is not clear from

her testimony whether she referred to Carroll or Salsberry—

entered first but never knocked. R.26, Ex.3 at 18-19.

Salsberry testified that he noticed people inside the house,

asked if one was Belter and, upon receiving an affirmative

response, opened the door and entered the house. It is not

clear from his testimony whether the storm door was closed

and the interior door was open, or whether both doors were

closed. He did not knock, ring the doorbell or say anything

else “because [he] could see the people standing right there.”

R.26, Ex.6 at 50.

Butler testified that Belter was “standing at the screen door”

when Salsberry spoke to him, and said nothing about a knock

or entry. R.26, Ex.4 at 62.

Freund testified that the storm door was closed, the interior

door was open and Belter was standing at the door. She recalled

Salsberry asking “Are you Mike Belter?” and then opening the

storm door and entering the residence. R.26, Ex.7 at 34-40.

Carroll alone testified that Salsberry knocked and that

someone—he was not sure who but indicated that it was not

(continued...)

6 No. 04-2993

told her to keep her dog away or he would shoot it.3 The

agents then handcuffed Belter.

Mr. Green followed the agents into the house. He testified

that he did not know who they were, and that he asked

repeatedly “Who are you people?” R.26, Ex.2 at 62. Eventu-

ally, according to Mr. Green, Carroll responded: “Here’s my

badge, here’s my ID and here’s my gun. Get out of my

way.” R.26, Ex.2 at 63. Salsberry took Belter to his bedroom

while Mr. Green and Carroll argued about whether the

former had signed a host site agreement. The other agents

looked around the rest of the residence. Accounts vary as to

how long the incident lasted, from thirteen minutes to an

hour, but at the conclusion Belter was released, Mr. Green

signed a host site agreement and Butler apologized for the

incident.

B. District Court Proceedings

Mr. Green and Ms. Poulsen brought this § 1983 action

against the parole agents for violating their rights under the

Fourth Amendment to the Constitution of the United States,

because the agents entered without a warrant and unreason-

ably failed to comply with the “knock and announce” rule.

The agents moved for summary judgment.

The district court granted the agents’ motion and entered

judgment in their favor. In doing so, the court rejected the

2

(...continued)

one of the agents—opened the door and let them in. R.26, Ex.5 at

58-59.

3

According to some of the officers’ depositions, they knew

or suspected that a dog was present in the home.

No. 04-2993 7

plaintiffs’ argument on the merits. It determined that, even

if the agents had failed to knock and announce their pres-

ence before entering, the knock and announce rule is but

one factor to consider in assessing whether an entry and

search is unreasonable under the Fourth Amendment.

Accordingly, the district court analyzed the totality of

circumstances, balancing the degree of privacy invasion

with the State of Illinois’ promotion of its legitimate inter-

ests. The court found the invasion of privacy to be minimal.

It noted that Mr. Green and Ms. Poulsen had a decreased

expectation of privacy because they knew that their

housemate Belter was a parolee, a fact reducing both their

subjective expectations of privacy and the objective expecta-

tions of society. Moreover, the court looked to the level of

intrusiveness inherent in the search itself. It determined that

the parole agents confined themselves to searching common

areas of the home and that there was no evidence that the

search was a veiled attempt to circumvent warrant require-

ments. On the other hand, the district court found Illinois’

interest to be compelling. The district court found a particu-

lar interest in maintaining public safety because parole

exposes a known offender to the public before he has served

fully his sentence and because recidivism rates are high.

Illinois’ interests were at their height, according to the

district court, as a reaction to Belter’s suspicious behavior

when the agents arrived the first time. On balance, then, the

district court found that the search comported with the

Fourth Amendment despite the agents’ failure to knock and

announce.

In the alternative, the district court held that the agents

enjoyed qualified immunity from suit. Even assuming that

Mr. Green and Ms. Poulsen established a Fourth Amend-

ment violation, the district court found that they could

8 No. 04-2993

not satisfy the second prong of the qualified immunity

analysis because “the unusual factual circumstances of this

case make the contours of Green and Poulsen’s rights in this

situation fuzzy enough that it would not be clear to a

reasonable agent in the same setting that the course of

conduct the agents undertook was unlawful.” R.29 at 10-11.

II

DISCUSSION

A. Standard of Review and Legal Standards

Summary judgment shall be granted “if the pleadings,

depositions, answers to interrogatories, and admissions

on file . . . show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). We

review the district court’s grant of summary judgment

de novo, viewing the evidence in the light most favorable to

the nonmoving parties, Mr. Green and Ms. Poulsen. Ander-

son v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chortek v.

City of Milwaukee, 356 F.3d 740, 745 (7th Cir. 2004).

The Constitution of the United States guarantees that

“[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no War-

rants shall issue, but upon probable cause.” U.S. Const.

amend. IV. The touchstone of Fourth Amendment inquiry

is reasonableness,4 a standard measured in light of the

4

It is undisputed that the agents entered Mr. Green’s home

without a warrant supported by probable cause. “It is a basic

(continued...)

No. 04-2993 9

totality of the circumstances and determined by balanc-

ing the degree to which a challenged action intrudes on

an individual’s privacy and the degree to which the ac-

tion promotes a legitimate government interest. United States

v. Knights, 534 U.S. 112, 118-19 (2001); see also Ohio v.

Robinette, 519 U.S. 33, 39 (1996). The reasonableness require-

ment, and the totality of the circumstances inquiry, extends

to the manner in which a search is conducted. United States

v. Banks, 540 U.S. 31, 35 (2003).

In interpreting the Fourth Amendment, the Supreme

Court has “looked to the traditional protections against

unreasonable searches and seizures afforded by the com-

mon law at the time of the [Constitution’s] framing.” Wilson

v. Arkansas, 514 U.S. 927, 931 (1995). One such “traditional

protection” is the requirement that “officers entering a

4

(...continued)

principle of Fourth Amendment law that searches and sei-

zures inside a home without a warrant are presumptively

unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980)

(internal quotation marks omitted). In Kyllo v. United States, 533

U.S. 27, 31 (2001), the Supreme Court reiterated this principle,

noting that “[w]ith few exceptions, the question whether a

warrantless search of a home is reasonable and hence constitu-

tional must be answered no.” It is clear, however, that a

parolee does not have a sufficient expectation of privacy to justify

the warrant requirement. See United States v. Knights, 534 U.S. 112,

120-21 (2001); Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987). Mr.

Green and Ms. Poulsen make no argument before us that the

absence of a warrant in this case violated their

Fourth Amendment rights. Instead, they argue that the non-

observance of the knock and announce requirement rendered

unconstitutional the entry of the officers. We shall limit our

own inquiry to the argument made before us.

10 No. 04-2993

dwelling must knock on the door and announce their

identity and purpose before attempting forcible entry.”

Richards v. Wisconsin, 520 U.S. 385, 387 (1997).

This common law “knock and announce” principle forms

“an element of the reasonableness inquiry under the Fourth

Amendment.” Wilson, 514 U.S. at 934; see generally id. at 931-

36 (surveying the common law principle). In Wilson, the

Supreme Court noted three circumstances in which

an unannounced entry could be reasonable: (1) when there

is a threat of physical violence to the officers; (2) when it is

necessary to apprehend an escaped prisoner; or (3) when

officers have reason to believe that evidence would be

destroyed. Id. at 936. In Richards, the Supreme Court largely

repeated the situations that it identified in Wilson, noting

that “[i]n order to justify a ‘no-knock’ entry, the police must

have a reasonable suspicion that knocking and announcing

their presence, under the particular circumstances, would be

dangerous or futile, or that it would inhibit the effective

investigation of the crime by, for example, allowing the

destruction of evidence.” Richards, 520 U.S. at 394. In United

States v. Banks, 540 U.S. 31 (2003), the Court described the

knock and announce rule as one of a class of “factual

considerations of unusual, albeit not dispositive, signifi-

cance” to the reasonableness inquiry. Id. at 36. Banks reaf-

firmed that “[t]he standard for a no-knock entry stated in

Richards applies on reasonable suspicion of exigency or

futility.” Id. at 37 n.3. The Court went on to explore a no-

knock entry based on exigency without considering the

futility exception. Id.

No. 04-2993 11

B. Fourth Amendment Violation

1.

The parties focus most of their attention on one issue: the

agents’ failure to knock and announce their presence and

intentions before entering the house.5 Simply stated, the

parties dispute whether the agents knocked and announced

their presence, whether Belter saw them as they approached

and whether the agents or an occupant of the home opened

the door. This factual dispute ordinarily would preclude a

grant of summary judgement. See Sledd v. Lindsay, 102 F.3d

282, 288 (7th Cir. 1996). However, the State argues that, even

assuming a failure to knock and announce, summary

judgment to the agents was appropriate because their

failure was excused.

We adhere to the principle that we must view the facts

in a light most favorable to Mr. Green and Ms. Poulsen.

There is evidence supporting the plaintiffs’ version of

events, and we therefore must assume that the agents

entered the home without knocking or announcing their

presence and purpose, and, thus, that they failed to

comply with the knock and announce rule. Moreover,

we must accept that Mr. Green did not know the iden-

tity of the agents, and that Belter did not see them or invite

5

Mr. Green and Ms. Poulsen raised the no-knock argument

in their opposition to the State’s motion for summary judgment,

but the district court did not explicitly address it. Instead,

the district court balanced the plaintiffs’ privacy interests with

the State’s interest in an overall reasonableness analysis, focusing

on Belter’s consent and the “special needs” inherent

in monitoring parolees.

12 No. 04-2993

them into the home before their entry.6

The State first argues that the agents’ failure to comply

with the knock and announce rule should be excused.

However, the factors justifying a no-knock entry identified

in Wilson, Richards and Banks largely are inapplicable to

this case.7 The agents here were not, for example, in pur-

suit of an escaped prisoner. Moreover, consistent with

the discussion in Banks, our cases have focused upon

exceptions to the knock and announce principle based on an

exigency, such as manifest danger to the officers or others.

See Leaf v. Shelnutt, 400 F.3d 1070, 1084-85 (7th Cir. 2005); see

also United States v. Gillaum, 372 F.3d 848, 854 (7th Cir. 2004)

(“Absent exigent circumstances, law enforcement officers

must knock on the entry door of a dwelling and ‘announce

their identity and intention before attempting forcible

entry.’” (quoting United States v. Espinoza, 256 F.3d 718, 723

(7th Cir. 2001))). It is possible that, in a situation such as the

one at issue here, the agents reasonably could have sus-

6

Because it ultimately does not affect the outcome of this case,

we assume that the agents’ alleged actions would not be a

violation of the knock and announce rule if co-occupant

Belter knew of the agents’ presence or otherwise indicated

his consent before they entered.

7

The agents did not break the door, but entering without

permission constituted a “forcible entry” for purposes of the

knock and announce rule. See Sabbath v. United States, 391 U.S.

585, 589-91 (1968) (construing the phrase “break open” in the

federal knock and announce statute, 18 U.S.C. § 3109, to include

opening a closed but unlocked door); Leaf v. Shelnutt, 400 F.3d

1070, 1082 n.12 (7th Cir. 2005) (finding a “breaking” when officers

parted blinds to enter an open door); see also United States v.

Antrim, 389 F.3d 276, 279 (1st Cir. 2004) (analyzing entry as

“forcible” though police used key to open the door).

No. 04-2993 13

pected an exigency based on Belter’s behavior on their first

visit of the day—the threat of imminent danger or perhaps

of the destruction of evidence—but they do not claim such

a justification. Indeed, it is clear that Butler and Bryant did

not believe that they faced an exigent circumstance because

they allowed Belter to return inside while they left the house

for a considerable period to meet with other agents. More-

over, Bryant’s notation about the purpose for the agents’

return to the home indicated nothing about an imminent

threat.

The State thus focuses its attention to the “futility”

exception, relying upon cases such as United States v. McGee,

280 F.3d 803 (7th Cir. 2002),8 and arguing that the agents’

entry was justified because it would have been futile to

knock and announce. According to the State, Mr. Green

already had notice that they would return and therefore

knew their identities and purpose; knocking and announc-

ing thus would have been futile, a “useless gesture.” Id. at

807. The State also argues that knocking and announcing

would have been “futile” because they reasonably believed

that the occupants had been warned of their return and

8

In United States v. McGee, 280 F.3d 803, 805 (7th Cir. 2002), an

FBI entry team knocked on and then entered through an outer

door of McGee’s apartment. Approximately ten seconds later, the

team broke down an interior door and entered, this time without

knocking. Unbeknownst to the entry team, McGee had exited

from the rear of the apartment after hearing the first knock and

had been apprehended; he thus was not in the apartment when

the team actually entered. We rejected McGee’s knock and

announce challenge, holding that it would have been a “useless

gesture” for the agents to knock and announce before entering

the inner door when McGee was not in the apartment and thus

could not authorize entry. Id. at 807.

14 No. 04-2993

knew their identities. See, e.g., United States v. Pelayo-Landero,

285 F.3d 491, 498 (6th Cir. 2002) (noting that knocking and

announcing is a “useless gesture” when the occupant

already knows the officer’s identity and purpose); United

States v. Kane, 637 F.2d 974, 978 (3d Cir. 1981) (same).

We cannot accept the State’s futility argument. Contrary

to the State’s submissions, McGee is inapplicable to these

facts. In McGee, we noted that the futility exception applies

when “a precipitous entry into a suspect’s residence

was harmless because that suspect was not home or was not

in a position to have ever answered his door.” McGee, 280

F.3d at 807 (citing United States v. Barnes, 195 F.3d 1027, 1029

(8th Cir. 1999)). In other words, the futility exception we

articulated in McGee renders a failure to knock and an-

nounce harmless when the homeowner could not have

authorized entry. That is not the case here; indeed, two

agents stopped to speak to the owner without identifying

themselves, and there was no reason not to knock before

entering the home. Moreover, because this is an appeal from

a motion for summary judgment, we must view

the disputed facts in a light most favorable to Mr. Green.

Under this standard, we credit his claim that he did not

know the identity of the individuals who approached

him and asked for Belter; we must accept as well Belter’s

view that he did not see the agents approaching before they

entered. This is not a situation where the occupant recog-

nized the officers and then sought to bar entry. See United

States v. Peterson, 353 F.3d 1045, 1049 (9th Cir. 2003). Rather,

it is one in which the occupants claim that they did not

know the identity of the officers. Accordingly, the State’s

futility argument is inapposite to the circumstances pre-

sented. See Leaf, 400 F.3d at 1084 n.17. It would not be

reasonable for the agents to believe that, under the cir-

cumstances, knocking or announcing their identity and

No. 04-2993 15

requesting permission to enter would have been a useless

gesture.

The State also argues an exception not mentioned in

Wilson or its progeny: that Mr. Green consented to the entry

by knowingly hosting a parolee, or that he at least tacitly

approved the entry by not objecting when the agents

approached him in the garage. See United States v. Ramirez,

523 U.S. 65, 70 (1998); Wilson, 514 U.S. at 934. In a related

argument, the State points out that Belter, a resident of the

house, had consented to the entry as a condition of his

parole, and perhaps Belter also implicitly gave consent if he

saw the agents’ approach.

We find this consent argument unavailing. It is true that

an individual may consent to an officer’s entry, thus

obviating the need for the officer to announce his presence

and purpose. This principle may apply even when the

occupant is unaware of the officer’s identity, for example,

when he responds with “[t]he door is open; come on in” to

unknown individuals knocking at his door. See United States

v. Hatfield, 365 F.3d 332, 340-41 (4th Cir. 2004). But viewing

the facts in a light most favorable to Mr. Green, the officers

were unknown and uninvited, and their entry was without

consent. Nor can it be said that Belter or Mr. Green con-

sented by agreeing to the conditions in the host site agree-

ment. Belter consented to a search at any time; however

neither Belter nor the homeowner consented to the activity

alleged here: parole agents walking into the house without

informing anyone of their identity and purpose.

Indeed, the alleged entry of unknown and uninvited

agents presented the very dangers that the knock and

announce rule was intended to address, and, contrary to the

State’s argument, requiring the agents to announce their

presence and purpose at the front door, or at least to Mr.

16 No. 04-2993

Green, would not “subordinate reasonableness to pure and

empty formalism.” Appellees’ Br. at 20. One purpose of the

rule is to protect the privacy of the occupants and to give

them an opportunity to prepare for the agents’ entry,

allowing them “to pull on clothes or get out of bed.”

Richards, 520 U.S. at 393 n.5. Under the circumstances, which

presented no exigency, it was an unreasonable invasion of

privacy for the officers to fail to afford Belter, Ms. Poulsen

or other occupants an opportunity to prepare for their entry.

The occupants were given no opportunity to comply with

the officers’ request.

More importantly, the entry alleged presented signif-

icant dangers for the officers, who, in entering

unannounced, exposed themselves to the risk that an

occupant would mistake their entry for an invasion and

reasonably would take defensive measures to protect

himself from the perceived, though mistaken, threat. See

United States v. Sargent, 319 F.3d 4, 8 (1st Cir. 2003); 2 Wayne

R. LaFave, Search and Seizure § 4.8(a), at 662-63 (4th ed.

2004). In the same vein, observance of the knock and

announce rule is a significant safeguard to the occupants of

the home, including innocent third parties for whom the

surprise of an unannounced entry by law enforcement

officers might elicit panic or other forms of irrational

conduct—action that easily can be misapprehended by

law enforcement officers and result in deadly defensive

measures on their part. See Sledd, 102 F.3d at 286.9 Specific to

9

The danger, and potential tragedy, of escalating violence

prompted by mistaken self-defense on the part of police and

occupant is illustrated by Sledd v. Lindsay, 102 F.3d 282 (7th Cir.

1996). In Sledd, the occupant heard police enter, mistook them for

(continued...)

No. 04-2993 17

the facts of this case, notice of impending entry might have

given the occupants a chance to control the dog, reducing

the risk to the agents of an accidental attack or of the need

to “shoot” the animal.

In sum, a reasonable officer would not believe that a

parolee’s consent to submit to search on demand elim-

inates the need to make such a demand, absent an exigency

or demonstrated futility. “None of the elements that have

supported dispensing with the knock and announce require-

ment in our case law exist in the current factual circum-

stances.” See United States v. Nielson, __ F.3d __, 2005 WL

1694033, at *5 (10th Cir. 2005).10

9

(...continued)

intruders, and retrieved a rifle to defend his home. The officers

saw Sledd with the firearm and shot him to death, claiming that

their action was justified, though mistaken, self-defense in

response to Sledd’s mistaken self-defense.

10

Moreover, in the criminal context, in this circuit, a violation of

the knock and announce principle does not result in the exclusion

of seized evidence. Rather, we have noted that relief for such

violations may be obtained through an action under 42 U.S.C. §

1983 or a Bivens action. United States v. Langford, 314 F.3d 892, 894-

95 (7th Cir. 2002), cert. denied, 540 U.S. 1075 (2003). To hold that

the conduct alleged here is insufficient to establish such a claim

risks making the knock and announce rule itself a useless gesture.

18 No. 04-2993

2.

Thus, we do not believe that an agent could reasonably

believe that any of the State’s asserted justifications would

excuse his failure to knock and announce. We also are

mindful that “[t]he knock and announce principle is but one

part of the reasonableness inquiry to be conducted under

the Fourth Amendment,” Leaf, 400 F.3d at 1083, and we

therefore must consider the totality of the circumstances,

Wilson, 514 U.S. at 934. “The Fourth Amendment’s flexible

requirement of reasonableness should not be read to

mandate a rigid rule of announcement that ig-

nores countervailing law-enforcement interests. . . . [T]he

common-law principle of announcement was never

stated as an inflexible rule requiring announcement under

all circumstances.” Id. The State urges that Belter, and hence

Mr. Green and Ms. Poulsen, had a decreased expectation of

privacy based on Belter’s status as a parolee, and that the

agents’ actions thus were reasonable when considered in

their totality, despite their failure to knock and announce.

We have noted that, “[i]n the case of parolees and proba-

tioners, th[e] expectation [of privacy] is significantly limited

by the supervisory relationship and restrictions imposed on

the individual by the State.” United States v. Jones, 152 F.3d

680, 686 (7th Cir. 1998).

There is a difference, however, between the reduced

expectation of privacy because one’s residence is subject to

search on demand and no expectation of privacy because the

police are free to enter, unannounced, at any time. As the

Supreme Court stated in Griffin v. Wisconsin, 483 U.S. 868,

873 (1987), “[a] probationer’s home, like anyone else’s,

is protected by the Fourth Amendment’s requirement

that searches be ‘reasonable.’” Just as “there is no blanket

exception to the knock and announce requirement for felony

No. 04-2993 19

drug cases,” United States v. Tavares, 223 F.3d 911, 916 (8th

Cir. 2000); see Richards, 520 U.S. at 394, there is no blanket

exception to the requirement for parolees absent exigency or

futility. A parolee who consents to search as a parole

condition cannot refuse an officer’s request to enter, and the

officer is excused from the general requirement that he

search only upon warrant supported by probable cause,

Knights, 534 U.S. at 121, but the officer is not excused from

identifying himself. See United States v. Musa, 288 F. Supp.

2d 1205, 1208 (D. Kan. 2003) (“The government does not

cite, nor did the Court find, cases that extend a probationer’s

diminished expectation of privacy to elimination of the

knock and announce requirement . . . .”), rev’d on other

grounds by United States v. Musa, 401 F.3d 1208 (10th Cir.

2005).11

Considering the totality of circumstances, the parole

agents had every opportunity to identify themselves and

request entry; they spoke to Mr. Green in the garage but still

asked only for Belter’s location and commented about Mr.

Green’s perceived failure to cooperate. They had another

opportunity to knock and announce when they reached the

front door, but declined to do so. There was no apparent

11

In United States v. Musa, 288 F. Supp. 2d 1205, 1208 (D. Kan.

2003), the district court rejected the Government’s argument

that a probationer’s consent to search lowered his expectation

of privacy to the point that a no-knock entry was reasonable.

On appeal in United States v. Musa, 401 F.3d 1208 (10th Cir.

2005), the court of appeals reversed, on the ground that exi-

gency justified the officer’s entry. The United States specifi-

cally disclaimed any challenge to the district court’s deter-

mination that a probationer’s blanket consent could eliminate the

need to knock and announce. See id. at 1217 (Henry, J., dissent-

ing).

20 No. 04-2993

exigency, and it is clear that time was not of the essence.

Moreover, even if the homeowner expects a visit from

parole agents, we do not believe that it would be clear to an

individual in Mr. Green’s position that a group of people

who approach and ask for the resident parolee necessarily

are agents of the State, rather than acquaintances or even

enemies of the parolee. Nor would it necessarily be clear to

the parolee that individuals entering the home are State

agents, as opposed to acquaintances or enemies of the host.

In balancing an individual’s privacy interests against

the State’s interests, Knights, 534 U.S. at 118-19, we can-

not say that the State’s interests weigh heavily here. As

alleged, there was no exigency justifying a failure to knock

and announce, no suspected danger to the officers, to

third parties or to the community. Nor was there an appar-

ent risk that evidence would be destroyed that

would excuse the agents from identifying themselves. In

contrast, the individual privacy interests and the poten-

tial risk of mistaken self-defense weigh heavily.

C. Qualified Immunity

The district court held in the alternative that, even if the

parole agents violated Mr. Green’s and Ms. Poulsen’s Fourth

Amendment rights, they were entitled to qualified immu-

nity from suit. Qualified immunity shields the agents from

suit unless Mr. Green and Ms. Poulsen can demonstrate (1)

“the violation of a constitutional right” that is (2) “clearly

established at the time of the alleged violation, so that a

reasonable public official would have known that his

conduct was unlawful.” Sonnleitner v. York, 304 F.3d 704, 716

(7th Cir. 2002); see Saucier v. Katz, 533 U.S. 194, 200-02 (2001);

Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). As

No. 04-2993 21

discussed above, the plaintiffs have met their first-prong

burden by demonstrating, at least at this stage of the

proceedings, the violation of a constitutional right.

We thus address here only the second prong of qualified

immunity analysis. As above, we consider the facts in a light

most favorable to Mr. Green and Ms. Poulsen, McGreal v.

Ostrov, 368 F.3d 657, 682 (7th Cir. 2004), and ask whether the

plaintiffs have demonstrated that, in 2003, reasonable parole

agents would have known that entering the home without

announcing their identity and purpose would be unlawful.

To meet their burden, Mr. Green and Ms. Poulsen “may

point to closely analogous cases demonstrating that the

conduct is unlawful or demonstrate that the violation is so

obvious that a reasonable state actor would know that what

he is doing violates the Constitution.” Id. at 683.

Mr. Green and Ms. Poulsen point to two cases, in addition

to the Supreme Court’s decision in Richards, to support their

position. In Sledd, 102 F.3d 282, we held that officers were

not entitled to invoke qualified immunity at the summary

judgment stage because, viewing the evidence in a light

most favorable to the plaintiff, the officers’ actions were

objectively unreasonable. The “unreasonable” actions in

Sledd included allegations that the officers failed to knock

and announce and then improperly used deadly force on the

occupant once they entered. Mr. Green and Ms. Poulsen also

point out that, in 2000, we described the knock and an-

nounce requirement as “well-established” and indicated

only two exceptions: where there is a threat of physical

violence or potential destruction of evidence. Jacobs v. City

of Chicago, 215 F.3d 758, 770 n.5 (7th Cir. 2000). The State

counters that neither Sledd nor Jacobs is entirely apposite to

the circumstances here and therefore argues that Mr. Green

and Ms. Poulsen have failed to meet their burden.

22 No. 04-2993

The State is correct that Sledd and Jacobs are not “on

all fours” with the case before us. See McGreal, 368 F.3d

at 683. However, the second qualified immunity prong

is not “predicated upon the existence of a prior case that

is directly on point. The question is whether a reason-

able state actor would have known that his actions . . . were

unlawful.” Nabozny v. Podlesny, 92 F.3d 446, 456 (7th Cir.

1996) (citation omitted). “Although earlier cases involv-

ing fundamentally similar facts can provide especially

strong support for a conclusion that the law is clearly

established, they are not necessary to such a finding.” Hope

v. Pelzer, 536 U.S. 730, 741 (2002) (internal quotation

marks omitted). Fourth Amendment inquiries are fact-

intensive. However, as the Supreme Court emphasized in

Hope, “officials can still be on notice that their conduct

violates established law even in novel factual circum-

stances.” Id. “The salient question is not whether there is

a prior case on all fours with the current claim but wheth-

er the state of the law at the relevant time gave the defen-

dants fair warning that their treatment of the plaintiff

was unconstitutional.” McGreal, 368 F.3d at 683. Considering

the facts of this case in a light favorable to the plaintiffs, we

believe that Mr. Green and Ms. Poulsen have met their

burden.

Of prime importance to our conclusion is the work of

the Supreme Court of the United States. By 2003, the

Supreme Court had affirmed, and had re-affirmed, the

importance of the knock and announce rule in Fourth

Amendment reasonableness inquiries. Richards, 520 U.S. 385;

Wilson, 514 U.S. 927. Richards and Wilson made clear that no-

knock entries would be reasonable only in cases of exigency

or futility. Cases interpreting the futility exception estab-

lished, at most, that knocking and announcing would be

futile if the occupant consented to entry, or was not there to

No. 04-2993 23

consent to entry, or recognized the officers and attempted to

bar their entry. In addition, by 2003, the Supreme Court had

recognized, in no uncertain terms, that a parolee’s home is

protected by the Fourth Amendment “like anyone else’s.”

Griffin, 483 U.S. 868. The Court also had rejected blanket

exceptions to the knock and announce rule in Richards. See

520 U.S. at 391-95.

In short, at the time of the incident at issue here, a reason-

able agent would have known that a critical component of

a reasonable entry under the Fourth Amendment was the

knock and announce requirement. There was no reason for

an agent to believe, under these facts, that dispensing with

the requirement was justified by any exigency or futility.

Nor was there any basis for a belief that the parolee’s

consent to search justified dispensing entirely with the

knock and announce rule. Indeed, when an officer enters a

home without knocking and announcing his identity and

purpose, and without a manifest exigency or demonstration

that compliance would be futile, the Fourth Amendment

violation “is so obvious that a reasonable state actor would

know that what he is doing violates the Constitution.”

McGreal, 368 F.3d at 683.

It may turn out, after the facts are fully developed, that the

parole agents here did knock and announce their presence,

or that Belter saw and recognized them before their entry, or

that an occupant of the home actually allowed them to

enter. But these are disputed issues of fact. “Given the

significance of the disputed issues of fact here, qualified

immunity from suit is effectively unavailable, even though

after a full trial the officers may yet prevail on the merits.”

Sledd, 102 F.3d at 288 (emphasis in original).

24 No. 04-2993

Conclusion

For the foregoing reasons, disputed issues of material

fact remain and the parole agents are not, at this stage,

entitled to qualified immunity from suit. We therefore

reverse the grant of summary judgment to the agents

and remand for further proceedings. The plaintiffs may

recover their costs in this appeal.

REVERSED and REMANDED

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-24-05