Kornegay v. Cottingham

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

7-23-1997

Kornegay v. Cottingham

Precedential or Non-Precedential:

Docket 96-7423

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iled July 23, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-7423

LYNETTE KORNEGAY, on her behalf and as guardian ad

litem for her two minor children; ANDREA ALEXANDER;

REGINALD KORNEGAY,

Appellants

v.

DEWAYNE COTTINGHAM, Detective, and certain

unidentified officers of the Wilmington Police Force;

ALFRED KACZAROWSKI; JOHN CIRATELLA; SCOTT

SOWDEN; LIAM SULLIVAN; WILLIAM BROWNE; BRUCE

COFFIEY; M. J. BROWNE; SEAN FINERTY; RICHARD

IARDELLA; MARLYN DIETZ; OFFICER THOMAS SPELL;

JACK FORTNEY; MICHAEL RODRIQUEZ; RICHARD

BROWN; CITY OF WILMINGTON

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

Civil Action No. 95-cv-00161

Argued: February 14, 1997

Before: COWEN, MCKEE, and JONES,* Circuit Judges.

(Filed July 23, 1997)

_________________________________________________________________

*The Honorable Nathaniel R. Jones, Circuit Judge, United States Court

of Appeals for the Sixth Circuit, sitting by designation.

Charles Slanina, Esq.

(Argued)

Biggs & Battaglia

1800 Mellon Bank Center

P.O. Box 1489

Wilmington, DE 19899

Attorney for Appellants

William J. Rhodunda Jr., Esq.

(Argued)

City of Wilmington Law Department

City/County Building, 8th Floor

800 N. French Street

Wilmington, DE 19801

Attorney for Appellees

OPINION OF THE COURT

MCKEE, Circuit Judge.

Lynette Kornegay filed this action under 42 U.S.C. § 1983

alleging that various Delaware law enforcement officers

conducted an illegal search of her home in violation of the

Fourth and Fourteenth Amendments. The district court

granted defendants' motion for summary judgment based

upon their assertion of qualified immunity. For the reasons

that follow, we will reverse in part and remand for further

proceedings consistent with this opinion.1

_________________________________________________________________

1. Kornegay raises four claims in this appeal: (1) the search warrant was

facially defective in failing to state any facts from which the informant's

reliability could be assessed; (2) detective Cottingham acted with reckless

disregard for the truth in failing to disclose that his confidential

informant was unreliable; (3) detective Cottingham acted unreasonably

in believing that Shannon Selby could be found at 2611 N. Locust Street;

and (4) the Crisis Management Tactical Team conducted an unlawful

entry by failing to comply with the knock-and-announce requirement.

We will affirm the decision of the district court on the first three claims

without discussion.

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I.

Kornegay and her minor children moved into a house

located at 2611 N. Locust Street, Wilmington, Delaware in

April 1994. The previous tenant, Dorothy Selby, had moved

from that address in January 1994. Her nephew, Shannon

Selby ("Selby"), occasionally listed his aunt's address as his

own.

In April 1994, Selby became a suspect in the April 14,

1994 murder of Montel Morgan. Wilmington police detective

DeWayne Cottingham headed that investigation and, after a

preliminary investigation into Selby's whereabouts,

incorrectly concluded that Selby was living at 2611 N.

Locust Street. Acting upon that belief, Cottingham applied

for and obtained a search warrant for that address. The

warrant listed Selby and the murder weapon as the

subjects of the search even though Selby was not

considered the shooter. His alleged involvement in Morgan's

murder was telling the actual shooter to shoot Morgan.

On May 5, 1994 at 6:00 a.m., members of the Crisis

Management Tactical Team ("CMTT") executed the warrant

which had been labeled "high risk" because Selby was

wanted for Morgan's murder. The CMTT used a battering

ram to break down the front door of 2611 N. Locust Street.

Only after the door was broken in did the officers identify

themselves by yelling "Police. Search Warrant." They

entered each room with guns drawn yelling "Police. Search

Warrant." In an upstairs bedroom, police found Kornegay,

a male friend, Andre Alexander, and Kornegay's twenty-

month old daughter in bed. The police ordered them not to

move, and Alexander was dragged from the bed and

handcuffed for a few minutes. Other officers brought

Kornegay's seven-year old son from the adjacent room

where he had been sleeping to his mother's room. He was

harshly told to "get in to where they are."

At that point, an officer downstairs called out "all clear",

and the CMTT left the house. Kornegay and Alexander were

given clothes to change into from their pajamas and

brought downstairs. Once downstairs, Kornegay was given

a copy of the search warrant. Only then did she learn that

the police were searching for a murder suspect named

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"Shannon Selby." In all, the CMTT remained in the house

approximately five minutes. During that time, the officers

restricted their search to behind furniture and the inside of

closets. Only the front door was damaged. Kornegay and

her children, however, were understandably frightened and

upset by the incident.

Kornegay subsequently filed a civil rights action under 42

U.S.C. § 1983 on behalf of herself and her children against

the officers who executed the search. She alleged that the

officers had violated the Fourth and Fourteenth

Amendments by relying on a warrant that was facially

defective and then searching their home in an

unreasonable manner. The officers moved for summary

judgment arguing that they were protected under the

doctrine of qualified immunity. The district court agreed

and granted summary judgment. This appeal followed.

We have appellate jurisdiction pursuant to 28 U.S.C.

§ 1291 which gives us jurisdiction over "appeals from all

final decisions of the district courts of the United States."

28 U.S.C. § 1291.2

II.

Kornegay contends that there are issues of material fact

regarding the reasonableness of the officers' conduct in

executing the search warrant and that the district court

therefore erred in granting them summary judgment. Our

standard of review is plenary.

Thus, `[we] review the district court's summary

judgment determination de novo, applying the same

standard as the district court. . . . [I]n all cases

summary judgment should be granted if, after drawing

_________________________________________________________________

2. In their brief, the appellants cite the collateral order doctrine as the

basis for our appellate jurisdiction. However, the authorities they cite for

that proposition all involve cases in which summary disposition was

denied the government actors. See, e.g., Forsyth v. Kleindienst, 729 F.2d

267, 271 (3d Cir. 1984); Evans v. Dillahunty, 711 F.2d 828, 829-30 (8th

Cir. 1983). Here, the district court granted summary disposition to the

officers. Thus, the appellants are appealing afinal order of that court,

and, therefore, our jurisdiction derives from 28 U.S.C. § 1291.

4

all reasonable inferences from the underlying facts in

the light most favorable to the non-moving party, the

court concludes that there is no genuine issue of

material fact to be resolved at trial and the moving

party is entitled to judgment as a matter of law.

Spain v. Gallegos, 26 F.3d 439, 446 (3d Cir. 1994)(quoting

Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co.,

998 F.2d 1224, 1230 (3d Cir. 1993)).

III.

"Government officials performing discretionary functions

generally are shielded from liability for civil damages if their

conduct does not violate clearly established . . .

constitutional rights of which a reasonable person would

have known." Shea v. Smith, 966 F.2d 127, 130 (3d Cir.

1992).

"[I]t is inevitable that law enforcement officers will in

some cases reasonably but mistakenly conclude that [their

conduct was lawful]." Orsatti v. New Jersey State Police, 71

F.3d 480, 483 (3d Cir. 1995). Accordingly, we do not

inquire into whether these defendants violated the Fourth

and Fourteenth Amendments. Instead, we must determine

if a reasonable fact finder could conclude that their conduct

did not violate clearly established law of which a reasonable

person would have known. Qualified immunity turns on the

reasonableness of the officers' belief that their conduct was

legal not its legality per se. "To determine reasonableness,

a reviewing court must ask `whether a reasonable person

could have believed the defendant's actions to be lawful in

light of clearly established law and the information he

possessed.' " Parkhurst v. Trapp, 77 F.3d 707, 712 (3d Cir.

1996)(citation omitted); see also Shea, 966 F.2d at 130

("[A]n official who conducts an illegal search may not be

held personally liable if he could have reasonably believed

that the search comported with the Fourth Amendment.").

" `Clearly established rights' are those with contours

sufficiently clear that a reasonable official would

understand that what he is doing violates that right." Id.

Since the instant challenge focuses in large part upon the

officers' failure to knock and announce their presence, we

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must determine the extent to which the "knock and

announce" rule was a "clearly established" right when they

searched Kornegay's home.

A. The "Knock and Announce" Rule

The Fourth Amendment protects "[t]he right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures." Wilson v.

Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 1916 (1995). The

"commonlaw requirement that police officers entering a

dwelling must knock on the door and announce their

identity and purpose before attempting forcible entry" is

incorporated into the Fourth Amendment's guarantees.

Richards v. Wisconsin, ___ U.S. ___, 117 S. Ct. 1416, 1418

(1997).3 This rule has come to be known as the "knock-and-

announce" requirement and it "strikes the appropriate

balance between the legitimate law enforcement concerns at

issue in the execution of search warrants and the

individual privacy interests affected by no-knock entries."

Id. at 1421-22.

First, it reduces the likelihood of injury to police

officers, who might be mistaken, upon an

unannounced intrusion into a home, for someone with

no right to be there. Second, it seeks to prevent

needless damage to private property. Finally, it

embodies respect for the individual's right of privacy,

which is to be imposed upon as little as possible in

making an entry to search or arrest.

United States v. Nolan, 718 F.2d 589, 596 (3d

Cir.1983)(citations omitted).

In United States v. Gable, 401 F.2d 765 (3d Cir. 1968),

police obtained a warrant to search the defendant's house

for gambling equipment. They attempted to gain entry to

the house by inserting a crowbar into the door and prying

_________________________________________________________________

3. Richards was decided after the search at issue here and thus the

officers who searched Kornegay's home cannot be charged with

knowledge of it. However, we cite it because the case affirms the

necessity for a case-by-case inquiry into the reasonableness of the police

conduct under the law at the time of the search.

6

it open without first knocking or announcing their presence

or purpose. As they were forcing the door, the defendant

voluntarily opened it. We held that the entry was illegal

because police failed to announce their purpose before

using the crowbar to pry the door open. That case was

decided nearly thirty years before the search at issue here.

Even the highest court in the state where the instant

search was executed had years ago declared a search

unreasonable when police failed to comply with the knock-

and-announce requirement. See Tatman v. Delaware, 320

A.2d 750 (Del. 1974). In Tatman, police obtained a search

warrant which they executed at 6:00 a.m. They knocked on

the street door to the multi-family dwelling, waited a few

seconds, and then used sledge hammers to break the door

down. Police then went to the second-floor apartment

described in the warrant and broke into that apartment

without knocking or announcing their purpose. The court

declared "[t]he no-knock search here was unreasonable and

violative of Fourth Amendment requirements. Prior to the

entry of a residence, the police officer is required by the

common law, in executing a warrant, to signify the cause of

his coming, and to make a request to open the doors." Id.

at 750 (citations and internal quotation marks omitted).

As noted earlier, Richards v. Wisconsin reaffirmed the

common law rule. In Richards, the defendant was convicted

of possession of cocaine with intent to distribute based

upon evidence that was seized from his hotel room

following a "no-knock" entry pursuant to a search warrant.

The Wisconsin Supreme Court affirmed the trial court's

denial of the defendant's suppression motion reasoning

that, given the inherent danger of today's drug culture,

"police officers are never required to knock and announce

their presence when executing a search warrant in a felony

drug investigation." Richards, 117 S. Ct. at 1418. The U.S.

Supreme Court reversed holding that there could be no

categorical exception to the rule. "Instead, in each case, it

is the duty of a court confronted with the question to

determine whether the facts and circumstances of the

particular entry justified dispensing with the knock-and-

announce requirement." Id. at 1421.

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A "no-knock" entry is justified when "the police [ ] 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." Id.; see also Wilson, 115 S. Ct.

at 1918-19; United States v. Singleton, 439 F.2d 381, 385-

86 (3d Cir. 1971). Courts have upheld dispensing with the

knock-and-announce requirement in four situations: (1) the

individual inside was aware of the officers' identity and

thus announcement would have been a useless gesture; (2)

announcement might lead to the sought individual's

escape; (3) announcement might place the officers in

physical peril; and (4) announcement might lead to the

destruction of evidence. See Richards, 117 S. Ct. at 1421;

Wilson, 115 S. Ct. at 1919; Bodine v. Warwick, 72 F.3d

393, 397 (3d Cir. 1995); United States v. Stiver , 9 F.3d 298,

302 (3d Cir. 1993); United States v. Kane, 637 F.2d 974,

978 (3d Cir. 1981).

Here, the magistrate issued an ordinary warrant to

search the residence at 2611 N. Locust Street. Such a

warrant "authorize[s] an executing officer to enter the

property where the search or seizure was to occur but

would not confer `no knock' authority unless the warrant so

indicated." Bodine, 72 F.3d at 396. Therefore, the officers

are shielded by qualified immunity only if they "could

reasonably have decided that an urgent need existed for

such an entry into the premises." United States v. Stewart,

867 F.2d 581, 584 (10th Cir. 1989). "To determine

reasonableness, a reviewing court must ask itself `whether

a reasonable person could have believed the defendant's

actions to be lawful in light of clearly established law and

the information he possessed.' The objective facts control a

decision on summary judgment, regardless of allegations of

intent." Parkhurst v. Trapp, 77 F.3d 707, 712 (3d Cir.

1996)(citation omitted). With these principles as our

guidepost, we examine the actions of the officers here.

B. The Officers' Information

Detective Cottingham was assigned to investigate the

April 14, 1994 murder of Montel Morgan, who had been

shot in the stomach in a high-crime area of Wilmington

8

called "the Bucket." Cottingham learned from one witness

that Shannon Selby told another individual at the scene to

shoot Morgan. A second witness confirmed that someone

other than Selby had shot Morgan but stated only that

Selby was present. This witness did not implicate Selby in

the shooting at all. Based upon this information,

Cottingham obtained an arrest warrant for Selby charging

him with first-degree murder, first-degree conspiracy,

second-degree conspiracy, and tampering with a witness.4

All of the murder-related charges were based on Selby's

alleged encouragement of the shooter. It is undisputed that

Cottingham did not think that Selby had shot Morgan.

After obtaining the arrest warrant, detective Cottingham

applied for a warrant to locate Selby. Although Cottingham

initially found three different addresses for Selby among

various police and court documents, a preliminary

investigation suggested that Selby's correct address was

2611 N. Locust Street. Residents in the Bucket confirmed

that Selby lived in the vicinity, but they did not know

where. A review of police records disclosed three different

addresses for Selby, one of which, 2611 N. Locust Street,

was in that area. The most recent arrest report listing N.

Locust Street as Selby's address was from January 1993.

Further investigation disclosed that a new telephone

number had been issued to a "Dorothy Selby" at that

address. Cottingham made no further effort to determine if

that number was still assigned to that address, but he did

call the number and ask for "Shannon Selby." He was told

that Selby was not there.

On May 4, 1994, detective Cottingham obtained a

warrant to search 2611 N. Locust Street for Selby and the

murder weapon. Cottingham decided to execute the warrant

at 6:00 a.m. on the following day and requested that the

Crisis Management Tactical Team ("CMTT") assist with the

search. The warrant was labeled "high risk" because Selby

was wanted in connection with a serious felony, and the

weapon involved had not been recovered. The CMTT was

instructed to consider Selby armed and dangerous.

_________________________________________________________________

4. The second witness reported to police that several individuals

including Selby threatened her after the incident.

9

On May 5, 1994 at 6:00 a.m., the CMTT, wearing masks

and bullet-proof vests, broke down the door at 2611 N.

Locust Street. After the door was broken in, the officers

yelled "Police. Search Warrant." The officers thereafter

entered Kornegay's home and proceeded as set forth above

in Part I.

The district court agreed with the Magistrate Judge's

Report and Recommendation that these "circumstances

justified deviation from the knock and announce rule, as

the high risk warrant was for a first degree murder suspect

who was a known drug dealer with previous arrests for

felony offenses involving the use of a weapon, and the gun

used in the murder had not been recovered." App. at 46.

We disagree.

There is nothing in this record to suggest that the officers

had information that the murder weapon was in Selby's

possession. He did not fire the fatal shot, he was not even

reported to have been armed at the murder scene, and

nothing suggests that the police had information that the

shooter gave Selby the weapon after the shooting. The mere

fact that the shooting occurred and the murder weapon was

not recovered does not establish that Selby was in

possession of it with such certainty that the officers'

conduct can be ruled reasonable as a matter of law.

"[O]fficers must have more than a mere hunch or suspicion

before an exigency can excuse the necessity for knocking

and announcing their presence. . . . [W]e will closely

scrutinize officers making a forced entry without first

adequately announcing their presence and purpose."

Dickerson v. McClellan, 101 F.3d 1151, 1160 (6th Cir. 1996)

(citations and internal quotation marks omitted).

Moreover, allegations of Selby's past drug dealing and

prior arrests for violent crimes do not suspend the knock-

and-announce rule. See Richards, 117 S. Ct. at 1421. A

reasonable jury could conclude that the reasons offered in

support of this search merely "consisted of generalities that

bore no relation to the particular premises being searched

or the particular circumstances surrounding the search."

United States v. Stewart, 867 F.2d 581, 585 (10th Cir.

1989). That conclusion suggests either that the officers'

concern that Selby was armed and dangerous was

10

unreasonable or that the officers employed a generalized

procedure that was unreasonable as applied to Kornegay's

home.

"In 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, 117 S. Ct. at 1421

(emphasis added). The ordinary risks that surround a

general category of criminal behavior are insufficient by

themselves to create an exigent circumstance. See id.

(refusing to create a blanket exception to the knock-and-

announce rule for felony-drug investigations because of the

danger they involve and the ease of destroying drug

evidence); see also United States v. Bates, 84 F.3d 790 (6th

Cir. 1996); Stewart, 867 F.2d at 584-85."If a per se

exception were allowed for each category of criminal

investigation that included a considerable--albeit

hypothetical--risk of danger to officers or destruction of

evidence, the knock[-]and-announce element of the Fourth

Amendment's reasonableness requirement would be

meaningless." Richards, 117 S. Ct. at 1421.

In United States v. Stewart, federal agents obtained a

warrant to search the defendant's house for drugs and

weapons based on evidence that he had supplied the drugs

involved in two previous undercover purchases and that

"substances traffickers do commonly possess and carry a

firearm." Stewart, 867 F.2d at 582. The search was

executed by the Denver S.W.A.T. team in accordance with

the pre-arranged plan to use "a two-man steel battering

ram to break down the front door and [then] immediately

[throw] a full charge stun grenade into the living room." Id.

at 583. Before breaking in the door, the S.W.A.T. team did

not knock and announce its presence. The subsequent

search uncovered drugs and other paraphernalia, cash, and

a loaded, semi-automatic pistol. Stewart entered a

conditional plea of guilty to distributing cocaine but

reserved the right to appeal the denial of his motion to

suppress. In the appeal that followed, the court of appeals

reversed. It reasoned, in part, that

11

[t]he officers had no information that would have led

them to believe that the defendant armed himself on a

regular basis. The officers thus had no information

whether firearms were present within the house. The

one incident involving the defendant and a pistol took

place away from the defendant's house. [Thus a]ny

conclusions regarding the presence of firearms on the

premises were purely conjectural.

Id. at 585. The same situation exists here with regard to

the officers' concern that Selby was armed, and it was

therefore for a jury to determine the reasonableness of this

entry as a matter of fact and not for a court to determine

as a matter of law.

Richards makes clear that the risks generally

surrounding murder investigations did not necessarily

create an exigent circumstance in this case. See Richards,

117 S. Ct. at 1421. We recognize that, as a practical

matter, officers effectuating an entry into a criminal

suspect's home might prefer to do so without first

announcing their presence. However, the Constitution

simply does not permit that practice in all instances.

Consequently, officers who act unreasonably cannot place

themselves beyond exposure to liability nor complain if they

are held accountable by persons such as Kornegay merely

because the more "prudent" entry is the unannounced one.

Often it is "reasonable" under a section 1983 analysis to

choose that method of entry. However, in view of the

weighty Fourth Amendment concerns at stake and the

sanctity of one's dwelling, it will not always be so. Indeed,

section 1983 liability for violations of the Fourth and

Fourteenth Amendments would be all but eviscerated if we

were to hold that an unannounced entry into one's home is

always "reasonable" because it provides a greater measure

of safety to police.5 Cf. id. ("[T]he fact that felony drug

investigations may frequently present circumstances

warranting a no-knock entry cannot remove from the

neutral scrutiny of a reviewing court the reasonableness of

_________________________________________________________________

5. Of course, we do not suggest that these officers ought to be liable

under section 1983. We only hold that a jury must assess the

reasonableness of their conduct.

12

the police decision not to knock and announce in a

particular case.").

Nothing in the record before us suggests that the officers

here had information that Selby regularly carried a weapon

or kept weapons in his home. The officers merely knew that

Selby was a "known drug dealer with previous arrests for

felonies including Robbery First Degree and Possession of a

Deadly Weapon During the Commission of a Felony." App.

at 47. A reasonable jury could conclude that this

information was not sufficiently particular to excuse the

officers' failure to knock and announce their presence

before breaking down the door to Kornegay's home. "An

individual's privacy interests are nowhere more clearly

defined or rigorously protected by the courts than in the

home the core of fourth amendment rights." Wanger v.

Bowner, 621 F.2d 675, 681 (5th Cir. 1980) (citing Payton v.

New York, 445 U.S. 573, 589 (1980)).

As noted above, the officers knew that Selby had not shot

the murder victim nor did they have evidence that he

possessed the gun that was used. Moreover, the officers

had conflicting evidence about whether Selby was even

involved in the murder of Morgan. Two witnesses placed

him at the scene of the murder, but only one said that he

had played any role in it.

Finally, a jury could find that any exigency surrounding

the circumstances of this case was eliminated by the

officers' decision to execute the search at 6:00 a.m. One of

the officers who executed the warrant explained that the

reason the CMTT selected that time was because "usually

the person is in bed . . . for [our] safety we do [them] at that

time, there [are] no people on the street . . . the school

children [are not] out or anything like that, and . . . to get

the people in bed." App. at 84 (emphasis added).

Thus, we cannot conclude on the facts of this case that

there is no issue of material fact as to whether the CMTT's

execution of the search violated clearly established

constitutional rights of which a reasonable person would

have been aware.

13

IV.

For the reasons set forth above, we reverse the district

court's grant of summary judgment on Kornegay's claim

that the CMTT's execution of the search violated the Fourth

and Fourteenth Amendments but affirm the grant of

summary judgment on her other claims. We remand to the

district court for further proceedings consistent with this

opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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