# Estate Robert Smith v. Marasco

> Court of Appeals for the Third Circuit · November 30, 2005 · 430 F.3d 140

URL: https://www.frixlaw.com/law-library/cases/9816502

## Case

- **Full name:** ESTATE OF Robert Cecil SMITH; Pauline Smith, Individually and as Administrator of the Estate of Robert C. Smith; Dana Smith; Wanda Smith, Appellants v. Trooper James MARASCO; Trooper Nicholas Scianna; Trooper Thomas Weaver; Trooper Andrew L. Wenger; Captain Michael J. Marcantino; Lieutenant Berry Reed; Lieutenant Edwards; Lieutant Schaeffer; Lieutant Snyder; Corporal Dante; Robert Johnson; Corporal Greg Hall; John Doe # 10-# 25, Whose Names Are Currently Unknown; Dante Orlandi; Thomas Gregory Hall, Tedescung L. Bandy; Barry L. Brinser; Gregory Broaddus; Carbonell; Colon; John R. Comerer, Jr.; Glenn C. Doman; John Edwards; Wayne S. Elser; Frank L. Fetterolf; David Frisk; Gillison; James A. Hamill; Martin L. Henry, III; Joseph Kalis; AJ. Krawczel; William J. McClure; Thomas McDaniel; Shawn Mell; Arthur Moss, Jr.; William Moyer; ED Murphy; Kevin Reichert; Charles Rodgers; Mervin Rodriquez; Thomas Rodriquez; Keith A. Stone; Gregory Stumpo; Dominic G. Visconti; William White; Joseph Wilson; Gregory Wirth; Michael Witmer; Kenneth Yoder; John Doe # 1-# 25
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** November 30, 2005
- **Citations:** 430 F.3d 140
- **Precedential status:** Published
- **Opinion:** Concurring in part by Roth
- **Judges:** Scirica, Roth, Becker
- **Cited by:** 65 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/9816502

## How later opinions describe it (automated extraction)

- noting that a “reasonable officer would be guided by the Sharrar factors in determining whether to use overwhelming force in a given situation,” and that “if an officer applies the Sharrar analysis in an unreasonable manner, he is not entitled to qualified immunity”
- holding that these facts are important for determining whether a SWAT-type search was reasonable

## Opinion text

ROTH, Circuit Judge, concurring in part and dissenting in part.
I agree with the majority’s conclusions in Parts II and III of its opinion. I respectfully dissent, however, from the conclusion in Part IV that Troopers Marasco and Scianna’s second trip by the back of the house, while they were trying to contact Smith by telephone, constituted an unreasonable search — or that a reasonable officer would understand that what he was doing violated the right against unreasonable searches. In view of the facts, acknowledged by the majority — that the troopers knew there was a back porch that Smith sometimes sat on, that there lights on in the house, that the garage door was open, that there were vehicles in the driveway, and that they wanted to locate Smith, who they believed to be in the house, in order to have him turn off the lights shining on Shafers’ property — I conclude that the second trip around the house, while the telephone contact was being attempted, was not an unreasonable search. Smith had created a public nuisance that was affecting his neighbor, and the steps taken by Marasco and Scianna were reasonable efforts to abate it. See, e.g., United States v. Rohrig, 98 F.3d 1506, 1518-25 (6th Cir. 1996) (holding that officers’ warrantless entry to locate and abate loud music late at night -was justified by exigent circumstances). 20 We should not permit the tragic consequences, caused by the later unrea *159 sonable assault on the house, to color our consideration of actions that, if the later tragedy had not ensued, would surely not be the cause of any claim of constitutional violation.
For the above reasons, I would affirm the grant of summary judgment to Troopers Marasco and Scianna on the claim of unreasonable search.
. In Smith I, we held that we expressed no opinion as to whether we would have found the circumstances presented Rohrig to be exigent. 318 F.3d at 521, n. 11. I conclude that bright lights directed at a neighbor’s property *159 late at night, in view of the history of friction between the neighbors, was a circumstance that required a reasonable effort to get the lights turned off if Smith was home and that the effort here was reasonable.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9816502. Public record. Not legal advice.