Anthony J. Rowe v. Bryan Lambe

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-1879

___________

Anthony J. Rowe, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Brian Lamb, Jail Supervisor; *

Brian Ellinger, Jailer, *

*

Appellants, *

*

Mike Carlson, in their individual *

and official capacities: Chuck *

Carson, Lt.; Chris Chernock, Sgt.; *

County of Dakota, Nebraska, *

*

Defendants. *

___________

Submitted: September 11, 1997

Filed: November 28, 1997

___________

Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

___________

BEAM, Circuit Judge.

Brian Lamb and Brian Ellinger appeal the district court's denial of their motions

for summary judgment based on qualified immunity in this 42 U.S.C. § 1983 action

brought by a probationer. We reverse.

I. BACKGROUND

Anthony Rowe entered a plea of guilty to various offenses.1 He was placed on

probation. One condition of his probation was that he "submit to a search of his person

or property at any time, by any Probation Officer or law enforcement officer, with or

without probable cause, for controlled substances or contraband."2 Appendix at 99.

While on probation, he was arrested in South Sioux City, Nebraska, for violating his

parole for an Iowa burglary conviction.

Dakota County Jail Supervisor Brian Lamb and Dakota County Corrections

Officer Brian Ellinger searched Rowe incident to his admission to the jail and found a

small quantity of drugs and the keys to Rowe's apartment. Jail regulations required that

personal possessions be inventoried and stored and that only individuals with legal

authority be allowed access to the property. Rowe's probation officer, Mike Carlson,

who had been present at the search, asked for Rowe's consent to search the apartment,

but Rowe refused. After showing the jailers a copy of Rowe's probation order, Carlson

requested the keys from Ellinger, who gave them to him. Ellinger's supervisor, Lamb,

was also present and had no objection. Carlson later searched the apartment.

1

Rowe was convicted of being a minor in possession (second offense), false

reporting to a peace officer, and contempt for failure to appear at trial.

2

Rowe contends that the signature on the document containing the terms and

conditions of his probation is a forgery and that he never consented to its terms. His

signature is of no consequence because the document is a court order. Rowe

consented to the terms imposed by the Court through his act of being released from a

jail term. Without accession to such terms, he would have been in jail.

-2-

Rowe filed this action in district court alleging, among other things, that Lamb

and Ellinger violated his Fourth Amendment right to be free from unreasonable

searches and seizures by providing the keys to Carlson to enable him to search Rowe's

residence. Lamb and Ellinger filed a motion for summary judgment based on qualified

immunity. The district court denied the motion, finding a genuine issue of material fact

on the question of whether Rowe's right to be free from an unreasonable search was

clearly established at the time of the alleged violation. Rowe v. Carson, No. 4:CV95-

3033, Mem. and Order, slip op. at 5 (D. Neb. Feb. 23, 1997).

II. DISCUSSION

In an appeal from the denial of a motion for summary judgment based on

qualified immunity, we review the legal issue of the existence of qualified immunity

de novo. See Sisneros v. Nix, 95 F.3d 749, 753 (8th Cir. 1996). In order to determine

whether a defendant is entitled to qualified immunity, we engage in a two-part analysis.

See Manzano v. South Dakota Dep't of Social Servs., 60 F.3d 505, 509 (8th Cir. 1995).

The first question is whether the plaintiff has alleged a constitutional violation. See

Siegert v. Gilley, 500 U.S. 226, 232 (1991). It is not until we have made that required

determination that we may analyze whether such right was clearly established at the

time of the alleged violation. Thomas v. Hungerford, 23 F.3d 1450, 1452 (8th Cir.

1994). Thus, our first consideration is whether Rowe has alleged a violation of any

constitutional right at all.

Probation, like incarceration, is a form of criminal sanction imposed by a court

on an offender after a guilty verdict or plea. See Griffin v. Wisconsin, 483 U.S. 868,

874 (1987). Probationers do not enjoy the absolute liberty to which every citizen is

entitled, but only conditional liberty properly dependent on observance of special

probation restrictions. See id. With probationers, there is a heightened need for close

supervision of the convicted person's activities to protect society and the probationer

himself. See United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993). In

particular, "in cases involving drugs, authorities supervising the convict 'must be able

to act upon a lesser degree of certainty that the Fourth Amendment would otherwise

-3-

require in order to intervene before [the person] does damage to himself or society.'"

Id. at 1203 (quoting Griffin, 483 U.S. at 879). Thus, a probationer can be subject to

a warrantless search under a statutory scheme or pursuant to the findings of a

sentencing court. See United States v. Schoenrock, 868 F.2d 289, 292-93 (8th Cir.

1989).

Although the permissible degree of impingement is not unlimited, probation

search schemes similar to that at issue here have been upheld as reasonable. See, e.g.,

Griffin, 483 U.S. at 880 (search of probationer's residence was reasonable pursuant to

a valid state regulation governing probationers); Kills Enemy, 3 F.3d at 1203 (search

was reasonable under a federal statute); Schoenrock, 868 F.2d at 292-93 (search of

probationer's residence was reasonable under conditions imposed by a sentencing

judge).

Because the terms of his probation order provided that he was subject to a

warrantless search of his home at any time by any law enforcement officer, and because

that term was reasonable, Rowe had no Fourth Amendment right to be free from such

a search. We therefore find that he has not alleged the violation of a constitutional

right. See Siegert, 500 U.S. at 231-32. The act of giving Rowe's probation officer the

keys to Rowe's apartment merely facilitated that valid search. Whether the action

violated jail procedures is not important to this constitutional inquiry. Accordingly,

defendants Lamb and Ellinger are entitled to summary judgment.

III. CONCLUSION

The order of the district court is reversed and this action is remanded for entry

of an order granting Lamb's and Ellinger's motion for summary judgment.

-4-

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

-5-