James Turk v. Daniel Comerford

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 12a0771n.06

No. 11-3682

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

JAMES TURK; MARY BETH TURK, individually ) Jul 17, 2012

and as mother of WKT and KMT, minors, ) LEONARD GREEN, Clerk

)

Plaintiffs-Appellants, )

)

v. ) On Appeal from the United States

) District Court for the Northern

DANIEL COMERFORD; JASON STASENKO; NICK ) District of Ohio

REXING; MARK ADAMS, individually and in his )

official capacity with the other Cuyahoga County )

Sheriff’s Office, )

)

Defendants-Appellees. )

Before: BOGGS, NORRIS, and KETHLEDGE, Circuit Judges.

BOGGS, Circuit Judge. James and Mary Beth Turk appeal two district-court

decisions granting qualified immunity to officers from an FBI task force who entered and searched

their home. The officers were looking for fugitive John Mattice. Four days earlier, Turk1 had

accompanied Mattice to the scene of a sexual assault that Mattice allegedly committed. According

to the Turks’ complaint and evidence, the officers surrounded the Turks’ home without any

indication that Mattice was with Turk, pushed through his door as he turned the deadbolt, and

searched his house, threatening him with jail time all the while. The Turks filed this § 1983 suit,

alleging that the officers violated their Fourth Amendment rights. Over the course of two summary-

1

“Turk” will refer to James Turk. “Mrs. Turk” will refer to his wife, Mary Beth Turk.

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judgment motions, decided by different judges, the district court held that all of the officers were

entitled to qualified immunity on all of the Turks’ claims. For reasons discussed below, we affirm

the decisions granting qualified immunity to an officer who was not present during the initial entry

and remained with Turk during the subsequent search, and to all officers on the Turks’ claim that

the officers violated their Fourth Amendment rights by entering the curtilage of their home.

However, we reverse the decisions granting qualified immunity on the Turks’ illegal-entry, illegal-

search, and illegal-detention claims, and remand for further proceedings consistent with this opinion.

I

Taken in the light most favorable to the Turks, the facts are as follows. On Friday, February

13, 2009, former police officer James Turk met John Mattice at the intersection of Interstate 480 and

Ridge Road in Cleveland, Ohio. Unbeknownst to Turk,2 who was working as a private investigator

for attorney Ed Heffernan, Cleveland Police had arrested Mattice for rape in October 2008. Worse,

because Mattice missed a scheduled court appearance, a bench warrant for his arrest had been issued.

Turk went with Mattice to 3900 Fulton Court, the scene of the alleged crime, and spoke with a tenant

named Emily.3 On request, he gave Emily one business card with his name, and another with both

his and Heffernan’s. He then asked for, and received, permission to take a photograph of the couch

where the incident took place and left. The entire visit, according to Turk, took approximately ninety

2

Turk allegedly did not learn what Mattice was wanted for until Sunday, February 15 or

Monday, February 16, when he read a newspaper article featuring Mattice as the fugitive of the

week.

3

Emily, apparently, was Mattice’s former girlfriend. It is not clear whether Turk knew this

at the time of his visit.

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seconds. After leaving the scene of the alleged crime, Turk dropped Mattice off in the same place

that he had picked him up earlier and proceeded to Akron on other business.

The Cleveland/Cuyahoga Fugitive/Gang Task Force (Task Force), a group of officers from

various law-enforcement agencies, deputized as federal agents by the FBI, began searching for

Mattice when he failed to appear in court “[o]n or about February 10, 2009.” Because the alleged

rape occurred at 3900 Fulton Court, and 3900 Fulton Court was the address listed on Mattice’s arrest

warrant, Task Force Officers Jason Stasenko and Mark Adams began their search at 3900 Fulton

Court. They learned that Mattice no longer lived at that address, but got Emily’s contact information

from a current resident. Emily and Stasenko spoke several times over the next three days. “[A]t one

point [Emily] indicated that Mattice had grown suspicious that she was helping the police, that she

feared for her safety, and that she no longer believed she could assist [the Task Force] in locating

Mattice.” On February 13, Emily called Stasenko, sounding “panicky . . . scared and intimidated.”

She told Stasenko that Turk and Mattice had come to 3900 Fulton Court while she was there, that

“Turk was pushy, [and] pushed his way into the house,” and that the two men left together in the

same car.4 Stasenko ran Turk’s name through a number of databases. He learned Turk’s home

address and that Turk had been found not guilty of Intimidation in the Cuyahoga County Common

Pleas Court.

On the morning of Tuesday, February 17, Turk’s son was getting ready for school when he

saw a man with a cap, dark clothing, and a gun outside of his window. He told his father that he

4

Turk denies that he was pushy, and claims that he tape recorded his interaction with Emily

to guard against such accusations.

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thought there was a terrorist in the backyard. Turk told his son to get behind him, and walked toward

his daughter’s room. Through his front window, Turk saw cars and men in hats “all over the place.”

Before he could reach his daughter, someone “pounded on the door . . . screaming out pounding on

the windows saying, Mr. Turk, you’re fucking going to jail right now, you’re going to jail, open the

door.” In response to Turk’s asking what was going on, the officer responded: “Open this door right

now, you’re going to jail.” Task Force officers, Turk claimed, were “banging on the front door with

something, a lead pipe, flashlight, [so hard that] things were shaking all over the place.”

Because “the window on the front door [was] shaking,” Turk “went to open the door.” The

front door of Turk’s house is a double door. Only the left-hand door opens—the right-hand door “is

a dummy door.”5 The Task Force officers, however, did not know this and, as Turk “went to open

the [left-hand] door . . . [the officers] tried to force” the right-hand door. Turk began to turn the

deadbolt, but “didn’t get it all the way because . . . somebody shoved the door open in [his] face.”

Indeed, Turk claims, the door splintered because Stasenko forced it open.

Turk’s wife, Mary Beth, corroborated her husband’s account, claiming that “the person

outside the door was yelling open up, open up,” and that “[w]hen [Turk] went to unlatch the deadbolt

he never turned to open, or maybe it was pushed.” She also insisted that she “never opened the front

door,” that “[a]s . . . Turk was manipulating the deadbolt to the front door . . . law enforcement

simply barged/pushed into the foyer area of our home,” and that she said nothing to any Task Force

officer until the officers had entered her home. Stasenko, by contrast, claims that, after he knocked

5

Although it is not entirely clear, it appears from the record that the door Turk opened was

the left–hand door from his perspective, not the officers’.

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on the door and identified himself as a police officer, “Mrs. Turk appeared in the doorway, opened

the door and let [the Task Force] into the foyer. [His] recollection is that she said words to the effect

of ‘come inside, I have neighbors.’”

It is undisputed that Stasenko entered the home first, followed by Officer Mark Adams and

Officer William Chapman.6 Next came Officer Daniel Comerford, who had been in the Turks’

backyard “covering” the back of the house “in the event the fugitive was present and tried to escape.”

Comerford came inside only after Stasenko, already inside the house, called him on the radio.

Officer Nick Rexing, who had been at the side of, and then behind, the house, entered eventually.7

Precisely when he came inside, however, is in dispute: Turk claims that he entered with Stasenko

and Adams,8 Rexing claims that he entered later. Although the officers did have a warrant for

Mattice’s arrest, they did not have a search warrant for Turk’s home.

Turk captured most of what followed on a recording device hidden in his underwear.9

Initially, Turk believed that the officers were associated with city animal control because Stasenko

wore a vest with the initials “APA.”10 Thus, when Stasenko told Turk to put his German Shepherd

6

Turk voluntarily dismissed his claim against Officer Chapman on December 18, 2009.

7

Rexing explained that his task was “to establish a loose perimeter in the event the fugitive

was present, to prevent his escape and protect the safety of officers on the scene.”

8

In his deposition, Turk claimed that he could not remember which other officers entered

with Stasenko. He did testify, however, that Rexing was inside “harassing [his] family” from the

outset.

9

The parties agree that the recording is accurate.

10

APA, Stasenko explained, means “Adult Parole Authority.”

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away, Turk responded: “Oh, I thought you said you were here for the dog.” Mrs. Turk then said: “Go

through the entire house. . . . Get your people out of my front lawn.” Immediately, Turk interjected:

“Wait a minute. Wait a minute. Wait a minute.” Ibid. The following conversation ensued:11

Officer: No, that’s how we do this.

Turk: Wait a minute. Because I work for an investigator.

Officer: You know what?

...

Officer: I’m going to put you in cuffs, you’re going to jail.

Turk: What?

Officer: All right. You were with this guy on Friday. So if you want

to play around with me

Turk: No, no, no, no, no, no, I don’t want to play around.

Mrs. Turk: You know, my kids are here, please.

Officer: Wait a minute.

Mr. Turk: I don’t want to play around, okay.

Officer: You were with him on Friday, right? Don’t lie to me or

you’re going to jail. You understand?

Mr. Turk: On the advice of my attorney - - can I call my attorney?

Officer: You can call your attorney after we’re done with you, okay?

Mrs. Turk: Go through my house - -

Officer: Is he here right now?

Mrs. Turk: No.

Mr. Turk: You cannot (inaudible) house (inaudible). 12

Stasenko grabbed Turk’s wrist and kept him in the foyer area, while other officers “spoke to [Mrs.

Turk] . . . about searching the house.” Turk, at this point, asked his wife to get Heffernan’s phone

number. She did so, and Turk spoke to Heffernan on the phone. Heffernan told him that, unless the

officers produced an arrest warrant, they would have to leave. Turk then gave the phone to Stasenko,

11

The transcript of the recording does not indicate which officer is which.

12

Not once in the transcript does any officer use the name “Mattice.” All references are to

“him,” or “he.”

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who told Heffernan: “I’m letting you know that we’re here - - they gave us consent to search, they’re

cooperating with us, okay. I told him that if he doesn’t cooperate he’s going to go to jail based on

investigative purposes of the Sheriff’s Department.” Stasenko continued:

Sir, all right, I’m just - - I’m doing a courtesy of talking to you. We have a warrant

for [Mattice’s] arrest, okay. If he turns himself in today, great. All right. We don’t

have to bother anymore [sic] people. Your client was with him on Friday, okay.

That’s why we’re here. We have information - - listen. We have information from

other sources that he was with him, okay. This gives us enough to come out here and

talk to him, okay. If he didn’t tell us a lot of stuff that we already know he was going

to go to jail on our investigation and we were going to hold him for at least 72 hours

if we didn’t charge him with obstructing justice or harboring a fugitive, that kind of

thing. Okay. That’s why we’re here now. They gave us consent to search, said he’s

not here, that’s fine, and then they called you. That’s why we’re here. I don’t care

if he’s going to arraignment, I don’t care if he’s, you know - - didn’t go to (inaudible)

99 percent of the time we hear the same thing.13

Turk continued to talk to Stasenko while Stasenko was talking to Heffernan. Turk asked whether

he could finish getting dressed. Stasenko told him no. He asked whether he could walk through his

house. Stasenko told him no. Turk then asked whether he was being detained. Again, Stasenko said

no. Ultimately, after being told again that he would go to jail, Turk agreed to stand in his foyer with

the officers and stopped asking questions.

As Turk, and later Stasenko, spoke to Heffernan, Mrs. Turk grew increasingly agitated,

exclaiming: “Please go search and fucking get out of my house,” “I have a ten year old here,” and

“go through my fucking house and look, okay.”

13

Heffernan told Stasenko that Mattice planned to appear at his scheduled arraignment later

that day.

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Turk’s responses varied. Some of his words indicated that he did not consent to the officers’

search. As Mrs. Turk grew more agitated, he said: “All right, don’t, please talk to me, please talk

to me. . . . She’s upset.” While Stasenko was still on the phone with Heffernan, and when Mrs. Turk

began to lead officers around the house, Turk said: “Beth, wait - - would you wait until he’s - -”

Mrs. Turk cut him off: “Here, they’ve already started, I’m giving them (inaudible) to get them out

of here. Okay. Come on.”

But Turk also made comments suggesting that he would allow officers to search. He told

Officer Stasenko: “We’re going to be very cooperative,” and in response to an officer’s telling him

that his wife consented to the Task Force’s “tak[ing] a look, [to] make sure [Mattice is] not here,”

said: “that’s fine.” He also offered the officers coffee, and said to his wife: “Beth, they’re just doing

their job, they’re mistaken.”

After Stasenko finished talking with Heffernan, he and Officer Comerford began to ask Turk

about his interaction with Mattice. Turk refused to answer, claiming that he could not remember

what he did the Friday before. The officers continued to threaten Turk with jail time, telling him:

“County jail is a great place to remember things.” The officers also tried softer tactics, stating: “if

you would just give us the information that we need, we’d leave and your wife would calm down,

your house wouldn’t be upset like this.” But all to no avail. Turk would not give the officers the

information they asked for.

Eventually, Heffernan called back or someone called him a second time. This time, he spoke

with Comerford, who told him that, if Mattice came to his arraignment, which was scheduled for that

day, Turk’s involvement in the case would be over. If Mattice did not attend, however, Turk would

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have to come to the police station with Heffernan and talk to the officers. Soon after this

conversation ended, the officers left the house. The entire encounter took approximately thirty

minutes.

On April 17, 2009, the Turks filed this lawsuit, alleging violations of state and federal law.

The United States filed a Notice of Substitution and Motion to Dismiss for Failure to Exhaust

Mandatory Administrative Remedies under the Federal Tort Claims Act, 28 U.S.C. § 1346. The

Turks sought, and received, leave to amend their complaint. The amended complaint omitted all of

the first complaint’s common-law tort claims, and added the Cuyahoga Metropolitan Housing

Authority as a party. In the amended complaint, the Turks alleged that the officers’ search was

unconstitutional under state and federal law, that the Cuyahoga County Sheriff and Cuyahoga

Metropolitan Housing Authority failed to train the Task Force adequately, that the same two

municipal parties maintained illegal policies and customs, and that the individual officers were liable

under Bivens.

Later, the Turks voluntarily dismissed their claims against the municipal parties and

Chapman. After discovery on the remaining claims against the Task Force officers, the United States

filed a motion for summary judgment, based on qualified immunity. The district court granted in

part and denied in part the motion. First, it held that the Turks’ version of the officers’ initial entry,

if true, would support a finding of liability on Fourth Amendment grounds. The district court

reasoned, however, that the Turks’ claim based on the Task Force’s subsequent search failed because

Mrs. Turk gave the officers permission to search, and Mr. Turk’s words were not clear enough to

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vitiate his wife’s express consent. Finally, the district court held that Stasenko did not unreasonably

seize Turk, because he detained him in the foyer only incident to a lawful consensual search.

Judge O’Malley, who handled the case initially, was appointed to the Federal Circuit and left

the Northern District of Ohio. Judge Polster took over. After this substitution, the United States

moved for reconsideration of Judge O’Malley’s earlier decision denying the officers qualified

immunity for their initial entry. Judge Polster granted the motion. He reasoned that the officers were

entitled to qualified immunity because they reasonably believed that Turk consented to their entry

when he began to turn the dead-bolt on his door. Judge Polster also disposed of all claims against

Comerford and Rexing, reasoning that neither officer was present in the house until after Stasenko,

Adams, and Chapman had entered, and both were entitled to assume that their fellow officers acted

constitutionally. The Turks appeal.

II

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” FED . R. CIV . P. 56(a).

“[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and

determine the truth of the matter but to determine whether there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). There is a genuine issue for trial if “the

record taken as a whole could . . . lead a rational trier of fact to find for the non-moving party.”

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). We review de

novo a district court’s grant of summary judgment, construing the facts and drawing all reasonable

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inferences in the moving party’s favor. Hirsch v. CSX Transp., Inc., 656 F.3d 359, 362 (6th Cir.

2011).

III

“Every person who, under color of . . . [state law], subjects, or causes to be subjected, any

citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. Section 1983,

however, does not make government officials liable for every act later held unconstitutional. Rather,

“[q]ualified immunity, shields federal and state officials from money damages unless a plaintiff

pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the

right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 131 S.

Ct. 2074, 2080 (2011). We need not address these two elements in a particular order. Ibid. (citing

Pearson v. Callahan, 555 U.S. 223, 236–37 (2009)).

Because qualified immunity is an affirmative defense, the defendant bears the burden of

pleading it in the first instance. Lanman v. Hinson, 529 F.3d 673, 683 (6th Cir. 2008); Sheets v.

Mullins, 287 F.3d 581, 586 (6th Cir. 2002). Once the defendant raises qualified immunity, however,

the burden shifts to the plaintiff, who must demonstrate both that the challenged conduct violated

a constitutional or statutory right, and that the right was so clearly established at the time of the

alleged violation “that every reasonable official would have understood that what he [was] doing

violate[d] that right.” al-Kidd, 131 S. Ct. at 2083 (internal quotation marks omitted). If the plaintiff

fails to establish either element, the defendant is immune from suit.

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IV

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

houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST . amend. IV.

It has long been clear that, under this Amendment, an officer may not search for a person named in

an arrest warrant in a third-person’s house, unless the officer has a search warrant, obtains consent,

or faces exigent circumstances. Steagald v. United States, 451 U.S. 204, 216 (1981). Because the

Task Force officers violated this right, the Turks allege, they are amenable to suit under § 1983.

Without question, Task Force officers had no warrant to search Turk’s house. Nor do they

claim that exigent circumstances justified their actions. Rather, Appellees argued below, and

maintain here, that they did not violate the Fourth Amendment because the Turks consented to the

officers’ entering, and then searching, their home.

“While the Fourth Amendment protects citizens against unreasonable searches and seizures,

a search of a person is not unreasonable if that person gives free and voluntary consent.” United

States v. Beauchamp, 659 F.3d 560, 571 (6th Cir. 2011). “The notion of voluntariness,” the Supreme

Court has observed, “is itself an amphibian. It purports at once to describe an internal psychic state

and to characterize that state for legal purposes.” Culombe v. Connecticut, 367 U.S. 568, 604–05

(1961) (Frankfurter, J.). Complex though voluntariness may be, there are guideposts that help us

determine whether an individual consented to an officer’s search of his own free will.

We consider consent voluntary only if “it is unequivocal, specific and intelligently given,

uncontaminated by any duress or coercion.” United States v. Moon, 513 F.3d 527, 537 (6th Cir.

2008) (internal quotation omitted). In determining whether this is so, we analyze the totality of the

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circumstances, including “both the characteristics of the [consenting individual] and the details of

the [search].” Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). We therefore take into account

“the age, intelligence, and education of the [consenting] individual; whether the individual

understands the right to refuse to consent; and whether the individual understands his or her

constitutional rights.” Beauchamp, 659 F.3d at 572. We also consider whether the officer advised

the consenting individual of his constitutional rights, how long the search took, and whether the

officer used physical punishment, Bustamonte, 412 U.S. at 226, or some “more subtle form[] of

coercion that might flaw [the consenting individual’s] judgment.” United States v. Watson, 423 U.S.

411, 424 (1976).

Here, we consider two discrete Fourth Amendment events: the officers’ initial entry and their

subsequent search.

The Entry

As Turk went to find his daughter, he saw cars and men in hats outside of his house. He then

heard someone pounding on his door with a heavy object and telling him that, unless he opened the

door, he was “fucking going to jail right now.” According to Turk, whose account we must credit

at this stage, Task Force officers then attempted to break down the “dummy” side of his front door.

Moments later, as he began to turn the deadbolt on the side of the door that opened, the left-hand

side, Task Force officers pushed the left-hand door open, causing it to splinter, and rushed into the

house.

Turk’s account, if true, describes a textbook Fourth Amendment violation. “It is axiomatic

that the physical entry of the home is the chief evil against which the wording of the Fourth

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Amendment is directed,” Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (internal quotation omitted);

see also Payton v. New York, 445 U.S. 573, 587 (1980) (“Freedom from intrusion into the home or

dwelling is the archetype of the privacy protection secured by the Fourth Amendment.”) (quoting

Dorman v. United States, 435 F.2d 385, 389 (D.C. Cir. 1970) (Leventhal, J.)). This “overriding

respect for the sanctity of the home . . . has been embedded in our traditions since the origins of the

Republic.” Id. at 601. Indeed, as then-future Prime Minister Pitt the Elder put it:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It

may be frail; its roof may shake; the wind may blow through it; the storm may enter;

the rain may enter; but the King of England cannot enter—all his force dares not

cross the threshold of the ruined tenement!

Miller v. United States, 357 U.S. 301, 307 (1958) (quoting The Oxford Dictionary of Quotations 379

(2d ed. 1953)).14

Here, law-enforcement officers, without a warrant, consent, or any exigent circumstance,

literally forced their way into the Turks’ home, arrogating to themselves powers beyond those of the

King of England. True, Turk’s turning the deadbolt may have shown that he was willing to talk with

14

Most believe that this quotation comes from a March 1763 speech to the House of

Commons on an excise tax. No reliable records, however, substantiate this attribution. There are

no contemporaneous records of House of Commons debates until 1771. There is a historical record

of a 1763 debate on the “Cyder Tax,” however, which reads: “Mr. Pitt spoke against this measure,

particularly against the dangerous precedent of admitting the officers of excise into private houses.

Every man’s house was his castle, he said.” 15 Parliamentary Hist. Eng. 1307 (1763) (available at

http://www2.odl.ox.ac.uk/gsdl/cgi-bin/library?e=d-000-00---0modhis06--00-0-0-0prompt-10---4-

-----0-1l--1-en-50---20-about---00001-001-1-1isoZz-8859Zz-1-0&a=d&c=modhis06&cl=CL1&d

=modhis006-aao.2.15.1.40 (last visited 7/13/12)).

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the officers face-to-face.15 But, without more, there is nothing about unlocking a door that

demonstrates consent—“unequivocal, specific and intelligently given,” Moon, 513 F.3d at 537—to

an officer’s entry into a home. Cf. United States v. Carter, 378 F.3d 584, 589 (6th Cir. 2004) (en

banc) (holding that stepping aside from doorway leaving officers clear path to enter, after being

asked for consent to search, was valid consent).

But even if Turk did mean to consent by beginning to unlock the door, a reasonable factfinder

could conclude that the officers’ threatening jail time and pounding on the door so hard that the glass

shook was coercive and therefore vitiated any consent that Turk gave. Indeed, we have found

coercion in significantly less trying circumstances. See Beauchamp, 659 F.3d at 572 (holding that

officers coerced suspect into consenting by failing to inform him of his right to refuse search and

asking for consent during frisk for weapons); United States v. Tatman, 397 F. App’x 152, 164–66

(6th Cir. 2010) (holding that consent to search house, given by domestic-violence victim pursuant

to signed consent form, was invalid because officers told her that it would be in her best interest to

sign form and victim saw abusive husband handcuffed and placed in police cruiser); United States

v. Worley, 193 F.3d 380, 386 (6th Cir. 1999) (holding that plain-clothes officers obtained consent

coercively by asking for permission to search bag, without detention, threat, or speech above

conversational tone, since suspect responded: “You’ve got the badge, I guess you can.”); United

States v. Tillman, 963 F.2d 137, 143–44 (6th Cir. 1992) (holding that consent was involuntary

because police told suspect that he was not free to leave and that search warrant would take two to

15

Such a conversation, of course, could take place through a door cracked open, or on Turk’s

front porch.

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three hours to obtain); cf. United States v. Bond, 433 F. App’x 441, 443 (6th Cir. 2011) (holding that

officer’s telling suspect that he would get a search warrant for hotel room did not make officers’

request to enter hotel room coercive). Thus, even if Turk’s turning the deadbolt were an act of

consent (which we hold that it was not), that consent was a product of coercion. Under either

analysis, the Task Force officers’ initial entry violated the Fourth Amendment.

The district court on reconsideration reached, and the officers urge, a different conclusion.

The district court reasoned that, because Turk began to turn the deadbolt after the officers knocked

on the door, and because the Turks did not object to the officers’ entry after they pushed the door

open, an objectively reasonable officer in Stasenko’s position could have believed that “the Turks

gave implied consent to enter their home.” Likewise, the officers argue that the Turks provided

“nothing . . . to demonstrate that a reasonable officer would not believe consent to enter was implied

from the circumstances or to rebut Stasenko’s assertion that he reasonably believed he had consent

to enter.” Appellees’ Br. at 33.

The district court erred and the officers are mistaken. Of course, it is possible to give consent

by conduct. See, e.g., United States v. Hinojosa, 606 F. 3d 875, 882 (6th Cir. 2010) (holding that

consent does not have to be verbal to be valid); Carter, 378 F.3d at 589 (“Carter asks us to hold as

a matter of law that consent must be given verbally . . . this we decline to do. Although a man’s

home is his castle, trumpets need not herald an invitation. The police may be kept out or invited in

as informally as any other guest.”). But that conduct, like any other kind of consent, must

unequivocally and specifically convey a message of consent, intelligently given and uncontaminated

by duress or coercion. Moon, 513 F.3d at 537.

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Turk’s beginning to move the deadbolt, after being told that he would go to jail if he did not

let the officers in, satisfies none of these criteria. It is, at best, an ambiguous gesture in response to

a direct threat of imprisonment. Indeed, if Stasenko had truly believed that Turk’s turning the

deadbolt was an act of consent, he had no reason to push the door open, rather than waiting for Turk

to finish opening it. Nor does the Turks’ failure to object after the unconstitutional entry bear on

this conclusion. The issue that we must decide is whether a reasonable officer in Stasenko’s shoes

could have interpreted Turk’s beginning to turn the deadbolt as consent to entry. That the Turks did

not object once the officers entered may be relevant to the factfinder, charged with deciding which

version of events to accept. But it does not affect our analysis, which turns only on what Stasenko

knew when he entered the home. In the totality of the circumstances, it was not objectively

reasonable to interpret Turk’s beginning to turn a deadbolt as an unequivocal and uncoerced

invitation to enter.

This conclusion makes the second piece of the qualified-immunity analysis relatively simple.

Officer Stasenko violated Turk’s right to be free from a warrantless search of his home for Mattice,

absent consent or exigent circumstances. The Supreme Court’s holding in Steagald clearly

established this right in 1981. Steagald, 451 U.S. 204. The officers who broke down Turk’s door

are not entitled to qualified immunity for their entry.

The Search

That the officers’ entry violated clearly established Fourth Amendment law, however, does

not mean that the same is necessarily true of their subsequent search. See Evans v. Vinson, 427 F.

App’x 437, 444 (6th Cir. 2011) (explaining that “doctrine[s] relating to the exclusionary rule . . . do[]

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not speak to the legality of the search itself and [are] thus inapplicable to the § 1983 context.”);

Chatman v. Slagle, 107 F.3d 380, 382 (6th Cir. 1997). Rather, the search was an independent Fourth

Amendment event, subject to independent Fourth Amendment analysis. As before, the Turks claim

that the officers violated their right to be free from a warrantless search of their home for Mattice,

absent consent or exigent circumstances. As before, the Task Force officers claim that an objectively

reasonable officer could have believed that he had consent to search the house, and that qualified

immunity is, therefore, appropriate.

The same general Fourth Amendment principles apply. An officer may not conduct a

warrantless search for a person named in an arrest warrant in a third-person’s house without exigent

circumstances or consent that “is unequivocal, specific and intelligently given, uncontaminated by

any duress or coercion.” Moon, 513 F.3d at 537 (internal quotation omitted). To determine whether

an officer had such consent, we examine the totality of the circumstances, taking into account

relevant characteristics of both the consenting individual and the request to search. Bustamonte, 412

U.S. at 226; Beauchamp, 659 F.3d at 572.

The burden to demonstrate that consent was voluntary “is not satisfied by showing a mere

submission to a claim of lawful authority.” Florida v. Royer, 460 U.S. 491, 497 (1983). And

consent coercively obtained, whether by trickery, see Bumper v. North Carolina, 391 U.S. 543,

548–49 (1968) (holding that search of sixty-six-year-old woman’s home was unconstitutional

because officers obtained consent by claiming, falsely, that they had a warrant), by “demanding

admission to make search of [a home] under government authority,” but without a warrant or exigent

circumstance, Amos v. United States, 255 U.S. 313, 317 (1921), or by openly threatening conduct,

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Kaupp v. Texas, 538 U.S. 626, 631–32 (2003) (per curiam) (holding that consent to seizure was not

valid where group of officers woke adolescent in the middle of the night “with the words we need

to go and talk.” (internal quotation marks omitted)), is no consent at all for Fourth Amendment

purposes. “A suspect’s knowledge of a prior illegal [act] can also give rise to a sense of futility,”

and vitiate consent. United States v. Haynes, 301 F.3d 669, 683 (6th Cir. 2002) (citing United States

v. Furrow, 229 F.3d 805, 814 (9th Cir. 2000), overruled on other grounds by United States v.

Johnson, 256 F.3d 895 (9th Cir. 2001)); Beauchamp, 659 F.3d at 572.

With the house surrounded, Turk’s liberty threatened, and the front door splintered, Mrs.

Turk allowed the Task Force to search her home. As soon as the Task Force officers entered, she

said: “Go through the entire house. . . . Get your people out of my front lawn.” Later, she asked that

the officers “[p]lease go search and fucking get out of my house,” and led them through “to get them

out of here.”

Turk was not so definitive. When Mrs. Turk first consented to search, his immediate reaction

was: “Wait a minute. Wait a minute. Wait a minute.” As Mrs. Turk began to lead officers around

the house, he said to the officers: “Please talk to me. Please talk to me. . . . She’s upset,” and to his

wife: “Wait a minute, wait. Wait until he’s done talking to Ed [Heffernan],” and “Beth, wait - -

would you wait until he’s - - ” However, Turk also told Officer Stasenko: “We’re going to be very

cooperative,” and in response to an officer’s telling him that his wife consented to the Task Force’s

“tak[ing] a look, [to] make sure he’s not here,” said: “that’s fine.” He also offered the officers

coffee, and said to his wife: “Beth, they’re just doing their job, they’re mistaken.”

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After breaking down the door and barging into the Turks’ home, no reasonable officer could

have believed that the Turks’ subsequent consent16 was voluntary. Rather, the coercion inherent in

the totality of the circumstances—the surrounded home, the unequivocal threats of imprisonment,

the splintered door, the ten-year-old daughter in a back bedroom—would have put any reasonable

officer on notice that the Turks’ consent was not freely given.17 Task Force officers are not entitled

to qualified immunity for the search that followed their illegal entry.

V

Turk also claims that Officer Stasenko violated his Fourth Amendment rights by physically

detaining him in the foyer. The district court dismissed this claim, pursuant to Michigan v. Summers,

452 U.S. 692 (1981) (holding that officers may detain occupants present during execution of a valid

16

In reaching our conclusion, we assume arguendo that the Turks did, in fact, ostensibly

consent to the officers’ search. We do not decide whether Mrs. Turk’s leading the officers around

the house, despite Mr. Turk’s somewhat inconsistent protests, qualified as consent, in light of

Georgia v. Randolph, 547 U.S. 103, 106 (2006) (holding that, when two occupants have joint control

over a home and the police seek consent to search, “a physically present co-occupant’s stated refusal

. . . prevails [over the other occupant’s consent], rendering the warrantless search unreasonable and

invalid as to him.”).

17

Consider, for instance, an officer who approaches a person sitting on his front porch. With

no reasonable suspicion, much less probable cause, the officer draws his gun, presses it against the

person’s head and demands consent to enter the person’s home. Once inside, the officer holsters his

gun and politely asks for consent to search, which the person gives. Of course, in isolation, the

officer’s second request is not particularly coercive. But the person’s consent to the officer’s search

of the home is still invalid because the officer’s earlier coercive tactics linger in the totality of the

circumstances.

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search warrant).18 But since we hold that the officers’ entry and search were invalid, we consider

this claim on its merits. See Johnson v. Hayden, 67 F. App’x 319, 324 (6th Cir. 2003).

“The Fourth Amendment protects the right of the people to be secure in their persons against

unreasonable seizures. This protection, however, applies only if a person is ‘seized’ within the

meaning of the Fourth Amendment.” United States v. Williams, 615 F.3d 657, 663 (6th Cir. 2010)

(internal citations and alterations omitted). “[N]ot all personal intercourse between policemen and

citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show

of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has

occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). An “encounter between a police officer and

a citizen [qualifies as] a seizure or detention within the meaning of the Fourth Amendment, if, in

view of all the circumstances surrounding the incident, a reasonable person would have believed that

he was not free to leave.” I.N.S. v. Delgado, 466 U.S. 210, 215 (1984).

Examples of circumstances that might indicate a seizure, even where the person did

not attempt to leave, would be the threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the person of the

citizen, or the use of language or tone of voice indicating that compliance with the

officer’s request might be compelled.

United States v. Mendenhall, 446 U.S. 544, 555 (1980). “Once a consensual encounter escalates to

the point where the individual is ‘seized,’ the police officer must have a reasonable suspicion of

criminal activity to justify a Terry stop, or probable cause to justify an arrest, in order for the seizure

18

The district court noted that courts in other circuits have applied the holding of Summers

to consent searches.

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to comply with the Fourth Amendment.” United States v. Campbell, 486 F.3d 949, 954 (6th Cir.

2007).19

Stasenko physically detained Turk, grabbing him by his wrist to keep him in the foyer and

away from his wife. When Turk asked to finish getting dressed, Stasenko told him no—compelling

him to stay in the foyer by threatening him with jail time. Nothing in the record suggests that

Stasenko had reasonable suspicion or probable cause to justify his actions. And, of course, it has

been clearly established, at least since Terry, that a seizure not justified by probable cause or

reasonable suspicion violates the Fourth Amendment. Qualified immunity is not appropriate for

Turk’s illegal-detention claim.

VI

The district court on reconsideration held that Rexing and Comerford could not be liable

because they did not enter until after Stasenko, Adams, and Chapman, and because law-enforcement

officers may generally assume that other officers have acted lawfully. See Sargent v. City of Toledo

Police Dep’t, 150 F. App’x 470, 474 (6th Cir. 2005) (explaining that “no Fourth Amendment

violation occurs when an officer follows a partner inside after the partner has already entered the

home,” unless “there is [some] indication either that [the officer] ordered [the partner] to enter the

house illegally or that [the officer] knew that [the partner] entered the home without consent”). This

conclusion was correct as to Comerford. In his deposition, Turk explained that Comerford did not

enter until Stasenko called him on the radio in response to Turk’s calling Heffernan. Nor did Turk

19

Summers, 452 U.S. 692, of course, carves out an exception to this general rule.

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specifically allege that Comerford did anything, other than speak to him in person, and to Heffernan

on the phone. There is no indication, in short, that Comerford personally participated in any

unconstitutional conduct. The district court was correct to hold that the Turks’ claims against

Comerford must fail.

Rexing is a different story. There is dispute in the record over when Rexing entered. Turk’s

deposition testimony suggests that Rexing was in the home early in the incident, even though Turk

claimed that he could not remember which other officers entered with Stasenko. Id. at 93. In his

later-produced affidavit, Turk averred that Rexing entered with Stasenko, Adams, and Chapman.

Rexing, by contrast, swore in his affidavit that, when he came inside, “Stasenko, Adams, and

Chapman were in the foyer with James and Mary Beth Turk.” This is a genuine issue of material

fact, not amenable to resolution on summary judgment.20 The district court erred by dismissing the

Turks’ entry and search claims against Rexing, even though, as we discuss below, the Turks’ breach-

of-curtilage claims against Rexing fail.21

20

It is true that “[a] party may not create a factual issue by filing an affidavit, after a motion

for summary judgment has been made, which contradicts her earlier deposition testimony.” Reid v.

Sears, Roebuck and Co., 790 F.2d 453, 460 (6th Cir. 1986). But Turk’s affidavit is not inconsistent.

Rather, he testified in his deposition that Rexing was inside “harassing [his] family” early in the

incident, while Stasenko was detaining him in the foyer, and later claimed that Rexing entered with

Stasenko. These two statements are complementary, not contradictory.

21

Of course, at trial the Turks must prove that Rexing, himself, acted unconstitutionally, for

“[t]his Court has consistently held that damage claims against government officials arising from

alleged violations of constitutional rights must allege, with particularity, facts that demonstrate what

each defendant did to violate the asserted constitutional right.” Heyne v. Nashville Metro. Pub. Sch.,

655 F.3d 556, 564 (6th Cir. 2011) (quoting Lanman, 529 F.3d at 684).

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VII

Finally, the Turks claim that Task Force officers violated the Fourth Amendment by

breaching the curtilage of their home. A house’s curtilage is an area “so intimately tied to the home

itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.”

Hardesty v. Hamburg Twp., 461 F.3d 646, 652 (6th Cir. 2006) (quoting United States v. Dunn, 480

U.S. 294, 301 (1987)). A law-enforcement officer may enter a home’s curtilage without a warrant

if he has a legitimate law-enforcement objective, and the intrusion is limited. United States v.

Weston, 443 F.3d 661, 667 (8th Cir. 2006). Unquestionably, one such permissible intrusion is a

“knock and talk,” an investigative technique where an officer knocks on the door of a house to

engage the person inside in conversation. Hardesty, 461 F.3d at 653. Also, “where knocking at the

front door is unsuccessful in spite of indications that someone is in or around the house, an officer

may take reasonable steps to speak with the person being sought out even where such steps require

an intrusion into the curtilage.” Id. at 654.

What is not clear is whether officers’ surrounding a house, with no warrant, exigent

circumstances, or consent, violates the Fourth Amendment, even during a knock-and-talk. Very few

cases address this issue, and what little law exists is not consistent. Compare United States v. Butler,

No. 06-CR-215, 2007 WL 2220260, at *8 (E.D. Wis. Aug. 1, 2007) (holding that surrounding house

during knock-and-talk was justified by legitimate law-enforcement purpose where officers had

reason to believe that large quantities of heroin were present), with United States v. Berry, 468 F.

Supp. 2d 870, 880 (N.D. Tex. 2006) (holding that entry onto curtilage could not be justified as

knock-and-talk, where “[t]here were at least eight officers present. The officers carefully planned the

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operation, staked out their positions surrounding Berry’s house, and took cover positions. Four

officers entered Berry’s patio and approached the front door.”). In this scenario, the officers are

entitled to qualified immunity, since Turk’s right not to have officers surround his house during a

knock and talk is not so clearly established “that every reasonable official would have understood

that what he [was] doing violate[d] that right.” al-Kidd, 131 S. Ct. at 2083 (internal quotation marks

omitted).

VIII

In sum, we REVERSE the district court’s grant of summary judgment on the Turks’ Fourth

Amendment entry, search, and seizure claims. We also REVERSE the district court’s grant of

summary judgment for Rexing, but AFFIRM its grant of summary judgment for Comerford, and its

disposition of the Turks’ breach-of-curtilage claim. We REMAND for proceedings consistent with

this opinion.

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