Wilian Gomez v. William J. Fiessner

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 11-1241

WILIAN TAVERAS GOMEZ; BARBARA GOMEZ; WILFREDO RAFEAL

TAVERAS; WILIANA TAVERAS,

Appellants

v.

WILLIAM J. FEISSNER, JOHN J. SOPRANO, JOSHUA WINTERS,

GERRY GALLAGHER, JASON ZOLA, ROBERT FERDINAND, DAVID COFFMAN,

MARK ZOLA, JAMES DIXON, DARRYL LEDGER, KEVIN WAGNER, DAVID

ZAPOTOCKY, JOHN LEONARD, ROBERT ZIENTEK, WALTER MAZUR,

CHRISTOPHER OROZCO, LEONAL RAMIREZ, DANE EPPLEY,

DAVID CHRISTINO

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-08-cv-00619)

District Judge: Honorable A. Richard Caputo

Argued on September 20, 2011

Before: AMBRO, CHAGARES and ROTH, Circuit Judges

(Opinion filed: March 30, 2012)

Laurence E. Norton, II, Esq. (Argued)

Peter Zurich, Esq.

Community Justice Project

118 Locust Street

Harrisburg, PA 17101

Counsel for Appellants

William H. Ryan, Esq.

Acting Attorney General

Calvin R. Koons, Esq. (Argued)

Senior Deputy Attorney General

Patrick S. Cawley, Esq.

John G. Knorr, III, Esq.

Chief Deputy Attorney General

Office of the Attorney General

Appellate Litigation Section

15th Floor, Strawberry Square

Harrisburg, PA 17120

Peter J. Smith, Esq.

United States Attorney

Timothy S. Judge, Esq. (Argued)

Assistant U. S. Attorney

United States Attorney’s Office

235 N. Washington Avenue, Suite 311

Scranton, PA 18501

Counsel for Appellees

OPINION

ROTH, Circuit Judge:

Plaintiffs Wilian Taveras Gomez, Barbara Gomez, Wilfredo Taveras and Wiliana

Taveras appeal the grant of summary judgment to federal and local officers on claims that

the officers violated their constitutional rights while searching their home. We will

affirm the District Court’s judgment as to the federal officers and local officer Jason

Zola, but with respect to local officer William Feissner, we will reverse and remand to

the District Court.

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I. BACKGROUND

The Gomezes reside at 9 West Monroe Avenue in West Hazelton, Pennsylvania,

in a building that also contains another residence, 11 West Monroe Avenue. The building

contains an unusual feature - a bathroom in Number 11 has a door that opens directly into

Number 9. The Gomezes claim that this door had been sealed shut by a strip of plastic

attaching it to its frame, blocking access from one residence to the other.

In 2007, a resident of Number 11, Bienviendo Guerrero, came under the suspicion

of local police for engaging in illegal drug sales. Accordingly, defendant William

Feissner, a Corporal with the Butler Township Police and a member of the Luzerne

County Drug Task Force, obtained a search warrant for Number 11. On September 5,

2007, a team of officers including Feissner, defendant Jason Zola, a detective with the

Hazleton Police, and defendants Dane Eppley and David Christino, two federal agents

from Immigration and Customs Enforcement, executed that warrant. Zola lead the team

that initially entered and secured the building. Feissner led the group that searched for

evidence. Eppley and Christino were present to determine the immigration status of any

persons the team encountered and to serve as translators for any Spanish speakers.

As the operation began, Zola’s team entered Number 11 and secured all of its

rooms. The team eventually came to the door in the bathroom which led to the Gomezes’

residence. They perceived the other side of the door as a potential “threat area” that

needed to be secured. They allegedly kicked down the door and went through it. The

team then encountered each of the Gomezes in various rooms and placed Wilian Taveras

Gomez and Wilfredo Taveras in handcuffs. Once Zola and his team had secured both

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homes, which took five to fifteen minutes, they left the scene. Feissner and Christino

then took the Gomezes to the kitchen of Number 11, where they were held while Feissner

and his team searched for evidence.

The Gomezes allege that when Wilian Taveras Gomez asked why his home was

being searched, Christino said to Wiliana Taveras, “Tell your father to shut up or we will

put the cuffs back on him. He is not a citizen!” They further allege that officers searched

their home for three hours, detained them for that duration, and seized $605.00.

The Gomezes alleged that these actions violated their constitutional rights and

asserted a number of claims against the officers. The District Court granted the officers

summary judgment on all claims, and the Gomezes now appeal on their claims brought

under 42 U.S.C. §§ 1983 and 1981(a). We have jurisdiction pursuant to 28 U.S.C. §

1291, and our review is de novo. Knopick v. Connelly, 639 F.3d 600, 606 (3d Cir. 2011).

II. DISCUSSION

The District Court granted the officers summary judgment on the § 1983 and §

1981(a) claims on the basis of qualified immunity. Under the doctrine of qualified

immunity, government officials are shielded from civil damages liability for official

conduct as long as it “does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). A legal right is clearly established if “its contours [are] sufficiently clear that

a reasonable official would understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). The officers here are entitled to

qualified immunity, then, if (1) the rights the Gomezes claim to have been deprived of

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were not clearly established, or (2) the officers’ alleged conduct did not deprive the

Gomezes of those rights. Ray v. Twp. of Warren, 626 F.3d 170, 174 (3d Cir. 2010). We

will examine the officers’ entitlement to qualified immunity under this standard for each

claim.

A. Unreasonable Search

The Gomezes claim that their Fourth Amendment right to be free from an

unreasonable search was violated when Feissner and Zola searched their home after they

knew or should have known that it was a separate residence from Number 11. “Searches

. . . inside a home without a warrant are presumptively unreasonable.” Payton v. New

York, 445 U.S. 573, 586 (1980). Even when officers operate with a warrant, they must

exclude any areas that they know or should know the warrant does not authorize them to

search. United States v. Ritter, 416 F.3d 256, 266 (3d Cir. 2005). If they mistakenly

begin to search such an area, they must stop as soon as they are put on notice of their

error. Maryland v. Garrison, 480 U.S. 79, 87 (1987); Ritter, 416 F.3d at 266. Based on

these principles, we hold that there is a clearly established right to be free from a search

of one’s home by officers who know or should know that such a search is unauthorized.

It is undisputed that Feissner searched the Gomezes’ home even though the

warrant pursuant to which he was operating specifically authorized a search only of

Number 11. The Gomezes allege, moreover, that he should have known during his

search that their home was a separate residence from Number 11. In support of this

contention, the Gomezes’ point to Feissner’s admissions that he was aware that the

building had multiple doorways, garages, electrical boxes, and satellite dishes and that he

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had previously considered the “real possibility” that it contained multiple residences.

They further allege that, based on his observations as he walked through the building, and

particularly upon finding a second kitchen, Feissner should have realized that he had

entered a separate residence. From our review, we conclude that this account does make

out a violation of the Gomezes’ clearly established Fourth Amendment rights. Feissner

therefore does not have qualified immunity from this claim.

The Gomezes allege that Zola entered their home as part of his effort to secure the

building. They concede that this was legal and that Zola was permitted to conduct a

protective sweep of their home. They claim that this sweep lasted five to fifteen minutes

and that at the conclusion of that period, Zola departed. They do not allege that Zola

searched their home for evidence. The Gomezes thus accuse Zola of legally entering

their home, conducting an appropriate protective sweep, and then leaving. These

allegations fail to establish that Zola violated the Gomezes’ right to be free from an

unreasonable search, and he thus possesses qualified immunity from this claim.

B. Unreasonable Seizure

The Gomezes also claim that Feissner and Zola violated their right to be free from

unreasonable seizure by detaining them for three hours during the search of their home.

A “seizure” occurs when a government officer, “by means of physical force or show of

authority . . . restrains the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).

Under clearly established Supreme Court precedent, it is reasonable for officers to seize

the occupants of a home while conducting a constitutionally valid search thereof.

Michigan v. Summers, 452 U.S. 692, 705 (1981). But this is true only for the duration of

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the search. When the search if completed, the authority expires. Id. Moreover, under

Garrison, it is clearly established that once officers know or should know that they are

without authority to continue a seizure, they must end it.

The Gomezes allege that Feissner should have known after fifteen minutes that he

had no authority to search their home. It is undisputed that for three hours beyond this

point, the Gomezes were involuntarily detained by either Feissner or officers under his

command. These allegations suffice to make out a violation of the Gomezes’ clearly

established right to be free from unreasonable seizure, and Feissner accordingly does not

have qualified immunity from this claim.

As for Zola, the Gomezes allege that he was present only until the conclusion of

the protective sweep of their home. Thus, he cannot be held responsible for their three

hour detention during the subsequent search for evidence. Given the Gomezes’

concession that the protective sweep was a legal search, any seizures during that sweep

would be valid under Summers. Zola thus has qualified immunity from this claim.

C. Unreasonable Seizure of Property

Wilian Taveras Gomez claims that the confiscation of $605.00 in cash from his

dresser violated his Fourth Amendment right to be free from unreasonable seizure. A

“seizure” of property occurs when “there is some meaningful interference with an

individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S.

109, 113 (1984). Subject to a limited number of exceptions not at issue here, “a seizure

of personal property [is] per se unreasonable . . . unless it is accomplished pursuant to a

judicial warrant issued upon probable cause and particularly describing the items to be

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seized.” United States v. Place, 462 U.S. 696, 701 (1983). Under Garrison, officers who

know or should know that these requirements are not met must abstain from seizing

personal property. An officer who fails to adhere to this requirement violates the

property owner’s clearly established Fourth Amendment right to be free from

unreasonable seizure.

Wilian Taveras Gomez alleges that Feissner searched the Gomez home after he

should have known that he had no warrant to do so, and it is undisputed that he seized

$605.00 from Wilian Taveras Gomez’s dresser during that search. This account is

sufficient to state a claim that Feissner violated his Fourth Amendment right to be free

from unreasonable seizure, and Feissner therefore does not have qualified immunity from

this claim. Because, however, there is no allegation that Zola seized any property, he

does have qualified immunity.

D. Equal Protection

Wilian Taveras Gomez claims that Eppley and Christino violated his constitutional

right to equal protection when Christino said to his daughter, “Tell your father to shut up

or we will put the cuffs back on him. He is not a citizen!” To state a valid equal

protection claim, a plaintiff must allege that he “receiv[ed] different treatment from that

received by other individuals similarly situated.” Kuhar v.Greensburg-Salem Sch. Dist.,

616 F.2d 676, 677 n.1 (3d Cir. 1980). Because Wilian Taveras Gomez does not allege

that either Eppley or Christino treated him differently from any similarly situated

individuals that actually existed, he fails to state a valid equal protection claim against

them. The federal agents are thus entitled to qualified immunity on this claim.

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III. CONCLUSION

For the reasons stated above, we will affirm the District Court’s grant of summary

judgment as to Zola, Eppley, and Christino but will reverse as to Feissner and remand

this case for further proceedings.

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