Gloria Franklin and Johnny Curry v. Derrick Foxworth

BRUNETTI, Circuit Judge,

concurring:

I agree with the result reached by the majority; however, I write separately to limit my holding to the unreasonableness of the officers’ conduct in detaining Curry in a semi-nude condition while they executed a search warrant.

In this case, 23 members of the Portland Police Bureau, under the direction of defendant Foxworth, executed a valid search warrant based on probable cause at the home where Curry lived. The basis for this warrant was a tip that the home was a distribution center for cocaine and that members of the household were part of the “Bloods” gang. Information also revealed that Franklin had purchased two guns. Executing the warrant, the police officers broke various windows in the residence as a diversionary tactic and knocked and announced their presence at the same time that they used a battering ram to break open the door. Curry does not contest the validity of the warrant or the officers’ manner of entry into the home.

Once inside, the officers split up over the three floors in the house to locate all the occupants and bring them to a central location. It is the custom and practice of the Portland Police Bureau to bring the occupants to a central location in order to secure them as quickly as possible to prevent them from arming themselves and confronting the officers, especially in narcotics cases in which persons involved are often armed and dangerous. In their search, the officers discovered three occupants and brought them all into the living room.

Two officers, defendants Billesbaeh and Justus, seized Curry from his bedroom, handcuffed him behind his back, brought him to the living room, and sat him on the couch. These officers recognized immediately that Curry was ill. Officer Billesbaeh observed Curry as “an elderly gentlemen, appeared to be elderly anyway, and he was not very mobile_ He appeared to be ill.” Officer Justus observed Curry in bed and testified that “[h]e seemed ... kind of skinny and he seemed like he had a physical disability, like it was difficult for him to get up and walk.” Once in the living room, Officer Foxworth did not attempt to interrogate Curry because he “was suffering from some type of medical disability and was not asked if he understood his rights nor was he subsequently interviewed.” In addition, Franklin warned the officers not to move Curry because he was a sick man.

In the living room, Curry complained about his wrists hurting him and being cold and tired from sitting on the couch. After some time, the officers changed his handcuffs so that his wrists were cuffed in front and brought a blanket to cover him. They did not allow him to return to his bedroom until after they concluded the search two hours later.

Testimony at trial revealed that as a result of multiple sclerosis, Curry had been unable to walk for several years. He had to be carried to the toilet, and because of his inability to control his bowels, he wore only a t-shirt to bed. At the time of the search, Curry was unable to sit up in bed without assistance and could not feed himself. Also at this time, Curry could not walk at all and had to be carried everywhere inside the house and was moved by wheelchair outside.

On the basis of these facts, I must decide whether the manner in which the officers executed the search and seizure of Curry was reasonable. See Graham v. Connor, 490 U.S. 386, 396 , 109 S.Ct. 1865, 1871 , 104 L.Ed.2d 443 (1988) (reasonableness under the Fourth Amendment is determined according to “the facts and circumstances of *881 each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight”).

I find that despite Curry’s illness, the officers were justified in moving Curry from his bed to the couch and detaining him in the living room for the duration of the search, pursuant to police practice. Officer Billes-baeh testified that this action was necessary to secure the premises and to conduct a thorough search of Curry’s bedroom, since there could have been drugs or guns hidden in or around the bed. He also stated that they could not return Curry to his bed after the officers searched that room, because they might have had to search the room again and because clothes were out on his bed. This was reasonable conduct from the perspective of the officers at the time, considering the information in the warrant that the police had probable cause to believe that there were drugs, guns, and gang activity at the house. See id. (“reasonableness” “judged from perspective of reasonable officer on the scene, rather than with the 20/20 vision of hindsight”). As the Supreme Court stated in United States v. Sharpe, 470 U.S. 675, 687 , 105 S.Ct. 1568, 1576 , 84 L.Ed.2d 605 (1985) (citations and internal quotations omitted),

A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which objectives of the police might have been accomplished. But the fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, by itself, render the search unreasonable. The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.

Here, the majority substitutes its judgment for that of the police who faced a potentially dangerous situation; this I cannot do.

However, upon balancing the nature and quality of the intrusion on Curry’s Fourth Amendment rights against the importance of the governmental interests alleged to justify the intrusion, I can say that I believe that the manner in which the officers treated Curry during the detention was unreasonable, making this an unusual case in which special circumstances render the detention unreasonable. See Michigan v. Summers, 452 U.S. 692 , 705 n. 21, 101 S.Ct. 2587 , 2595 n. 21, 69 L.Ed.2d 340 (1981) (“special circumstances, or possibly a prolonged detention, might lead to [the conclusion that a detention during a search is improper] in an unusual case”). Based on the specific facts and circumstances, the intrusion into Curry’s privacy was great; this was after the officers recognized that he did not pose an immediate threat to their or others’ safety and that because of his illness, he could not actively resist arrest or attempt to evade arrest by flight. The officers acted unreasonably in failing to cover the semi-nude Curry during the prolonged search.

Officer Billesbach testified about the policy of the police to bring a person back to the bedroom and properly clothe that person if he or she is brought out of the bedroom with his or her genitals exposed. He also stated that there is no exception to that rule. Officer Justus testified about this policy as well, stating that the police would dress someone they found not clothed during a search. When asked whether it would have not been pursuant to practice if Curry had been brought out to the living room and was nude from the waist down, Officer Justus replied, “[r]ight. We would have put something on him.”

Based on the disputed testimony in this case, it appears that the officers did not follow that policy. Franklin, Curry’s caretaker for almost 22 years, testified that Curry “own[ed] nothing come passed the waist.” She stated that when he was sitting on the couch, he was wearing “[n]othing but a top. His penis and his buttocks, he was sitting on, he was exposed.” The court said that it was “prepared to find that he did not have a nightshirt covering his genitals.” The testimony of Officers Billesbach and Justus is *882 contradictory in itself. Officer Justus testified that Curry was wearing “real baggy pants or pajamas.” Officer Billesbach, however, testified that “Curry was wearing a nightshirt” that “came down to the middle of his thigh” and did not “recall him wearing trousers.” In light of this disputed testimony and the police’s policy to clothe individuals brought out of bed because of a search, it appears that the officers did not observe this policy when they brought Curry from his bedroom to the living room and forced him to sit on the couch during the search with his genitals exposed. That conduct of the officers was unreasonable and rendered the detention improper.

Moreover, the officers left Curry on the couch uncovered with his hands cuffed behind his back for a considerable amount of time, while Curry complained through Franklin that he was uncomfortable and cold. It was not until an hour after bringing Curry to the couch that the officers brought Curry a blanket and moved his handcuffs from the back to the front. This attempt to ameliorate the situation does not vitiate the fact that the officers brought him semi-nude to the couch and left him there unclothed for one hour.

I therefore concur with the result in the majority’s opinion that the district court improperly dismissed Curry’s suit. I limit my holding to the fact that the officers acted unreasonably in the manner in which they detained Curry by forcing him semi-nude from his bedroom to the living room where he sat on the couch with his genitals exposed.