# Cindy Louise Cross v. City of Des Moines, John Woolsey Dennis Rich, Cindy Louise Cross v. City of Des Moines, John Woolsey Dennis Rich > Court of Appeals for the Eighth Circuit · May 28, 1992 · 965 F.2d 629 URL: https://www.frixlaw.com/law-library/cases/9483006 ## Case - **Full name:** Cindy Louise CROSS, Appellee, v. CITY OF DES MOINES, John Woolsey; Dennis Rich, Appellants; Cindy Louise CROSS, Appellee, v. CITY OF DES MOINES, Appellant, John Woolsey; Dennis Rich - **Court:** Court of Appeals for the Eighth Circuit - **Decided:** May 28, 1992 - **Citations:** 965 F.2d 629; 1992 U.S. App. LEXIS 11863; 1992 WL 110797 - **Precedential status:** Published - **Opinion:** Dissent by Heaney - **Judges:** Beam, Heaney, Loken - **Cited by:** 69 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9483006 ## How later opinions describe it (automated extraction) - reversing decision denying motion for summary judgment on qualified immunity grounds where police officers entered a woman’s apartment in an attempt to find her husband who was the subject of an arrest warrant ## Opinion text HEANEY, Senior Circuit Judge, dissenting. It is difficult for me to believe that a majority of this panel is determined to overrule the district court. Contrary to the majority, I do not have any problem understanding Cindy Cross’s theory of the case. She simply contends that the officers did not have consent to enter her apartment, that the officers did not have probable cause to do so, and that exigent circumstances justifying an entrance without a search warrant were not present. It is clear to me that the district court correctly decided that summary judgment was not appropriate here because genuine questions of material fact exist as to (1) whether the defendants had reasonably trustworthy information to believe that Floyd Cross was in Cindy Cross’s apartment, and (2) whether or not Cindy Cross consented to the search of her apartment. As to consent, the full record with respect to this contention is contained in the district court’s opinion at pages 4-5. It reads as follows: Q. What information did you have in your possession to believe that Floyd Cross was inside Mrs. Cross’ apartment? A. The information we had? None. That’s why her permission was asked. Q. You had none and that’s why her permission was asked, is that correct? *636 A. That’s correct. (Deposition of Officer Woolsey, page 36, lines 15-22.) Officer Woolsey was also asked: Q. You had no probable cause' and therefore you asked for her consent, is that correct? Mr. Lussier: Same objection as previously. A. We had felt that — we believed Floyd had gone to the apartment. That’s what I’m telling you. Q. But you also told me that you had no information to justify that and that’s why you asked for her consent, isn’t that what you told me? A. You were referring to what things we had in our possession to prove or to say that he was actually there. We had nothing to say that he was actually there. Q. Is that why you asked for her consent? A. That’s correct. (Deposition of Officer John Woolsey, page 37, lines 9-22.) Officer Woolsey responded further to the following questions: Q. Do you contend that you had probable cause? A. Sir, it is my feeling that with her consent we’re not working on probable cause. Q. Do you contend that you had it despite not needing it? A. Had she refused, if that’s your question, we would not have gone into that apartment. (Deposition of Officer John Woolsey, page 42, lines 1-7.) In my view, a factfinder could conclude, based on a reasonable reading of the deposition testimony presented to the district court, that the officers relied exclusively on Cindy Cross’s alleged consent to enter the apartment. We should give the factfinder an opportunity to do so. The majority further asserts that the officers, as a matter of law, had reason to believe both that Floyd Cross resided at Cindy Cross’s apartment and that Floyd Cross was in the apartment when the search occurred. The officers said they reasonably believed that Floyd Cross resided in his former wife’s apartment because they saw a man resembling Floyd Cross driving Cindy Cross’s car and because they subsequently found the car parked at Cindy Cross’s apartment. Perhaps a factfinder would accept this explanation, but we should not find the officers’ belief to be reasonable as a matter of law. Thousands of black men living in Des Moines may match the officers’ vague description. In my view, a factfinder could reasonably conclude that the officers merely speculated that Floyd Cross was driving the car and that the probable cause required to justify the intrusion into Cindy Cross’s home was absent. There is one additional matter that deserves discussion. Before the district court, the officers argued they did not need a search warrant to enter Cindy Cross’s apartment because they had probable cause to do so and because exigent circumstances permitted their entry into the apartment. The district court determined that this issue was not ripe for summary judgment. It did so for very good reasons. First, between the time they saw the black man driving Cindy Cross’s car and the time of the search, the officers had several hours to secure a search warrant. Second, Cindy Cross’s hands and arms are missing. This handicap explains the landlady’s concern when the officers appeared on the scene. The record however, does not indicate whether the officers were aware of her condition. If they were, this knowledge undercuts the officers’ claim that the landlady’s alarm signaled the presence of exigent circumstances. The fact is that not only were the officers totally insensitive to Cindy Cross, but they might have violated her privacy by charging into her apartment without her consent and without probable cause. Had they asked one simple question of Cindy Cross when they arrived at her apartment — “Who was the black man driving your car earlier today?” — they would not have invaded her privacy. Instead, they *637 paid no respect to her and entered her apartment (possibly) without either her consent or probable cause. It may be that if we follow the decision of the district court and remand for trial, the officers could establish at trial that they reasonably believed Cindy Cross had given her consent. If that is the case, they would be entitled to a verdict, but they certainly have not established that fact at this point. It may also be that on full development of the facts at trial, the officers could convince a jury that they reasonably believed they had probable cause to enter the apartment, but the facts have not been fully developed at this point. Despite the majority’s conclusion to the contrary, genuine issues of material fact exist regarding both of these issues. Therefore, I would affirm the district court and direct that this case proceed to trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9483006. Public record. Not legal advice.