Opposition Brief — Mottola v. Ayeni

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No. 94-1202

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

JAMES MOTTOLA,

PETITIONER,

VS.

TAWA AYENI AND KAYODE AYENI,

RESPONDENTS.

ON PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Henry H. Rossbacher*

Tracy W. Young

Nanci E. Nishimura

ROSSBACHER & ASSOCIATES

Union Bank Plaza-24th Floor

445 South Figueroa Street

Los Angeles, Calif. 90071

Tel. (213) 895-6500

-Of Counsel-

Harry C. Batchelder, Jr., Esq.

Attorneys for Respondents

*Counsel of Record

March 1995

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether it was clearly established, and a reasonable law

enforcement officer would have believed, that an officer was

violating the Fourth Amendment to the Constitution when he

permitted private individuals, under the imprimatur of a search

warrant, to enter private property without the residents’

consent and to conduct a search and effect seizures for

purposes that were unrelated to any legitimate law

enforcement activity.

Page

TABLE OF AUTHORITIES ...........--s ee eeeeee ii

I. QUESTION PRESENTED .................... 2

Fig ti 1 Bo heer ree |

REASONS FOR DENYING THE WRIT ............. 6

REO ccccscctcensetstersasdesaeenneadan 8

THE SECOND CIRCUIT RELIED ON WELIL-

DEVELOPED PRINCIPLES OF CONSTITUTIONAL

LAW IN FINDING IT "CLEARLY ESTABLISHED"

THAT AN OFFICER’S USE OF A SEARCH WARRANT

TO PERMIT UNAUTHORIZED INDIVIDUALS TO

ENTER PRIVATE PROPERTY, SEARCH AND SEIZE

FOR NO LAW ENFORCEMENT PURPOSE VIOLATES

THE FOURTH AMENDMENT. ................ 8

THIS CASE DOES NOT PRESENT FOR REVIEW

APPLICATION OF A LEGAL PRINCIPLE THAT IS

SUBJECT TO A CONFLICT IN THE CIRCUIT COURTS

Ce CEE cctevccvanvenesnevesnelaniet 24

CRA ccc ccanescdoneenneseedeaeeieees 30

Pel AS

CASES

483 U.S. 635, 640,

107 S.Ct. 3034, 3039,

97 L.Ed.2d 523 (1987) .........00-- 8.9, 16, 19, 21

Anderson _v, WROC-TV,

109 Misc. 2d 904,

441 N.Y.S.2d 220, 226,

7 Media L.Rep 1987 (Sup.Ct. Monroe Co. 1981) ... 18

848 F.Supp. 362 (E.D.N.Y. 1994) .............. 5, 10

35 F.3d 680 (2d Cir. 1994) ...... 5, 6, 11-13, 15, 17, 25

30 F.3d 1390, 1400 (llth Cir. 1994) ............. 28

958 F.2d 697 (6th Cir. 1992) .........-.0ecc eee. 14

i oa SNe

of Federal Bureau of Narcotics,

403 U.S. 388, 404 1.5,

91 S.Ct. 1999, 2009 n.5,

| 29 L.Ed.2d 619 (1971)... eee cece cece. 4.5.11

Borucki_v. Ryan,

: Ly a 26

849 F.2d. 1117, 1121 (8th Cir.),

cert. denied, 488 U.S. 1010,

109 S.Ct. 796, 102 L.Ed.2d 787 (1989) ......... 19, 27

116 U.S. 616, 630,

6 S.Ct. 524, 532, 29 L.Ed. 746 (1886) ............

Oregon _v. Hass,

420 U.S. 714, 719, 95 S.Ct. 1215, 1219,

| ee er ne ee

Delaware _v. Prouse,

440 U.S. 648, 654-655,

99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979) ........

2 F.3d 1412, 1416 (Sth Cir.),

cert denied, U.S. ,114S.Ct. 1189,

EEF Ga PU kk ces enccndaccvescess

17 F.3d 944, 952 (7th Cir. 1994) ........... 16, 20, 27

Elder_v. Holloway,

_US._ ,114S.Ct., 1019, 1023,

roe re 10, 24

Vv ,

436 U.S. 149, 98 S.Ct. 1729,

RS ee ee eae eee

Fox v. Arcadia State Bank,

937 F.2d 1566, 1570 (11th Cir. 1991) ............

Giuft Bissell,

31 F.3d 1241 (3d Cir. 1994) ...........0....00..

og ee hae sae Pe. ee

Graham_v. Connor,

490 U.S. 386, 395,

109 S.Ct. 1865, 1871,

oe a rrr 11

381 U.S. 479, 484,

85 S.Ct. 1678, 1681-1682,

MS, sss. eae cc was enue, 12

Harlow_v. Fitzgerald,

457 U.S. 800, 818,

102 S.Ct. 2727, 2738,

73 L.Ed.2d 396 (1982) ................ 8, 16, 26, 27

5 Med.L.Rptr. 2372 (S.D. Ca. 1980)

EE Se 19, 20, 22

H District of Columbia,

Bek A | re 28

In re Southeastern Equipment Co, Search Warrant,

746 F.Supp. 1563, 1577 (S.D. Ga. 1990) .......... 15

ides

817 F.2d 303,

OE ag viva nods wna eee cles seades 9,19

803 F.2d 485, 490 (9th Cir. 1986) ............... 27

Saale Saint ttc eli ticks axCtrnah

Layne & Bowler Corp,

v. Western Well Works Inc.,

261 U.S. 387, 393,

43 S.Ct. 422, 423,

ES , cw cc cevidasweveesaeaeuns 29

Mitchell_v, Forsyth,

472 U.S. 511, 535 n.12.,

105 S.Ct. 2806, 2820 n.12,

PUREE EOUEED cevccerccvcveseerwesaunes 9

Moncrief_v,. Hanton,

10 Med.L.Rptr. 1620 (N.D. Oh. 1984)

EEE. Sno 4k 6.0 6003 00000 we ees es b ewes 19-22

New Haven Inclusion Cases,

399 U.S. 392, 450 n.66,

90 S.Ct. 2054, 2088 n.66,

RE cv ic ews cccceasecueees 17

434 U.S. 159, 98 S.Ct. 364 (1971)... 2. eee eee 16

EE YS Sea ree re 28

Roe _v. Wade,

410 U.S. 113, 93 S.Ct. 715,

PR ET CED oor ccvcccesvensvennsis 22

Shabazz _v. Coughlin,

852 F.2d 697, 701 (2d Cir. 1988) ........... 9, 19, 25

Soares _v. State of Conn.,

8 F.3d 917 (2d Cir. 1993) ...............00 0 ee 25

_US._,113 S.Ct. 538, 545, 121

NE cg ov. cccuscdavccdcd, 12, 22

Tennessee _v. Garner,

471 U.S. 1, 7-8,

105 S.Ct. 1694, 1699-1700, 85 L.Ed.2d 1 (1985) .... 11

United States _v. Clouston,

623 F.2d 485, 486 (6th Cir. 1980) ............... 15

777 F.2d 1376, 1381 (9th Cir. 1985) ............. 11

734 F.Supp. 1084, 1091 (S.D.N.Y. 1990) .......... 15

United States _v. Gervato,

474 F.2d 40, 45 (3d Cir.),

cert. denied, 414 U.S. 864,

ere BG Re Ye 15

United States v. Hare,

SN ee 13

| United States v, Heldt

688 F.2d 1238, 1260 (D.C. Cir. 1981),

cert. denied, 456 U.S. 926,

102 S.Ct. 1971, 72 L.Ed.2d 440 (1982) ........... 11

| 707 F.2d 317, 320-323 (8th Cir. 1983) ............ 14

| United S Matias.

| 836 F.2d 744, 747 (2d Cir. 1988) ................ 11

United States v. Sanchez,

509 F.2d 886 (6th Cir. 1975) ................ 13, 14

813 F.Supp. 149 (E.D.N.Y. 1992) ................ 4

692 F.Supp. 119, 126-27 (E.D.N.Y. 1988) ......... 15

United States _v. Warren,

550 F.2d 219, 225 (Sth Cir.),

cert. denied, 434 U.S. 1016,

98 S.Ct. 735, 54 L.Ed.2d 762 (1978) .......... 13, 14

667 F.2d 793, 797 (9th Cir. 1982) ............... 15

387 U.S. 294, 304,

87 S.Ct. 1642, 1648-49,

fe ae eee 12

Weaver _v, Brenner,

GB P.O0 SET OG Clr. 1990) cook cc cc cccckcccinss 25

Winston _v, Lee,

470 U.S. 753, 758,

105 S.Ct. 1611, 1615, 84 L.Ed.2d 662 (1985) .... 12,22

977 F.2d 1392, 1397 (10th Cir.),

cert. denied, _U.S.__, 113 S.Ct. 3038,

125 L.Ed.2d 724 (1993) .......... cece eee 21, 26

Page

STATUTES

Fourth Amendment

of the Constitution ........ 2, 1, 6, 8, 10, 12-17, 19-22, 25

18 U.S.C

2 SPP rrr Tes cc eer er re ee 8, 14-16, 25

A See Mra amie Sona ae ey reer ma ae ear ae 15

Federal Rule of Criminal Procedure

EE etter ee ee le oh ala da ee re af 16

NS Ss are Wir ie 2 ae od eee eG Ue ee 16

Supreme Court Rule

i he es a ag So nay Bae gare aera 29

ee) ee ee a ee Bae a 23, 29

Ninth Circuit Rule

rite a Ot et ee one 21

Sixth Circuit Rule

ET dec a8 SG clad ae aa RAR A 20

STATE

CASES

Prahl_v. Brosamle,

98 Wis.2d 130, 295 N.W.2d 768 (Wis.App. 1980) 19, 22

MISCELLANEOUS

Martin A. Schwartz & John E. Kirklin,

By Fee FO | wre eer rer rr rrr 21

STATEMENT OF THE CASE

This case arises from an incident occurring on March 5,

1992 involving video and audiotaping by CBS television of the

execution of a search warrant by Secret Service and other law

enforcement agents in the private home of Babatunde Ayeni

and his wife and then five year old son, Respondents Tawa and

Kayode Ayeni. Respondents ("the Ayenis") were home in their

apartment in Brooklyn, New York at the time of the search.

They are suing Petitioner Secret Service Agent James Mottola

("Mottola") for civil damages resulting from his violation of

their Fourth Amendment rights arising from his admitted entry

into their home with the media in tow under the auspices of a

search warrant.’

The facts alleged in the First Amended Complaint,

accepted as true and found to be undisputed by the Second

Circuit, establish the following series of events. On March 5,

1992, Mottola obtained a search warrant based upon

information provided by a confidential informant that

Babatunde Ayeni was engaged in credit card fraud. The

warrant authorized Mottola and “any Authorized Officer of the

United States" to enter the Ayenis’ apartment to search for

"fraudulently obtained credit cards" and other, documentary

‘At the time of the proceedings in the District Court, the unknown

Secret Service agents and Postal Inspectors who participated with Mottola in

the search had not yet been served with a complaint. The Government,

pursuant to an order by the District Court, thereafter disclosed the names of

the unknown agents. Filing of an Amended Complaint identifying the agents

is being held in abeyance by the District Court pending this Court's

determination of Mottola’s Petition. Mottola was thus the sole defendant for

purposes of the appeal to the Second Circuit Court of Appeals. Furnishing the

agents names is the only discovery permitted to this point. The case is stayed

pending resolution of the instant petition.

evidence of credit card fraud. (Am. Compl. P. 24.)’ Neither

Mrs. Ayeni nor Kayode was under investigation for any illegal

activity.”

Prior to March 5, 1992, the Secret Service had effected an

agreement with CBS, Inc. permitting the network to send its

employee Meade Jorgenson ("Jorgenson") and a camera crew

along on the search warrant execution at the Ayeni home.

Jorgenson was a producer of a weekly CBS television news

magazine called "Street Stories." This agreement and the plan

to take a media news crew along on the search had been

concealed from the Magistrate Judge who approved the search

warrant. Mottola does not dispute that the CBS camera crew

and Jorgenson were unnecessary to the execution of the search

warrant.

At approximately 6:00 p.m. on March 5, 1992, six armed

agents arrived without a warrant at the Ayeni apartment where

Mrs. Ayeni and her son were home alone. The agents called

through the Ayenis’ closed door that they were "police"

conducting an investigation and wanted to ask questions.

When Mrs. Ayeni, clothed only in a dressing gown, cracked

open the door, one agent pushed her in the chest to move her

away from the door while two other agents pushed open the

door. The agents then entered the apartment. As several of

the agents rushed into the bedroom and started searching in

the closets, Mrs. Ayeni asked to see a warrant. One of the

agents told her they were waiting for other agents to bring the

2* Am. Compl.” refers to the First Amended Complaint.

Federal agents Mirandized Mrs. Ayeni although she was not under

suspicion or investigation or ever charged with any crime. (See Joint Appendix

("J.A.") filed in support of the appellate briefing before the Second Circuit, at

pages 178-180, Affidavit of Tawa Ayeni.)

warrant. Mottola was not present with this first group of

agents; he was obtaining the warrant and may have been

communicating with them by radio. ;

At approximately 7:50 p.m., nearly two hours after the

initial entry, the agents were notified by radio that the warrant

had just been signed. It is possible they were notified by

Mottola who was in charge of the search. The agents then

commenced an aggressive search. At approximately 8:15 p.m.,

Mottola entered the apartment with three additional armed

agents. He ushered in a CBS news crew, including Jorgensen,

a camera operator, and a sound technician. Neither Jorgenson

nor the crew were ever identified to Mrs. Ayeni, who believed

they were part of the team of agents executing the warrant.

No permission for their presence was ever given by the Ayenis.

Mrs. Ayeni immediately objected to the videotaping, trying

to avoid it by covering her and Kayode’s faces with a magazine.

Kayode sat on the couch crying and told his mother he was

frightened. When Mrs. Ayeni tried to shield her son’s face,

Mottola grabbed the magazine out of her hand, threw it on the

floor, and told the Ayenis to “shut up." Mottola or one of the

other armed agents directed the CBS crew to videotape Mrs.

Ayeni, who repeatedly requested that their pictures not be

taken.

While CBS video and audiotaped Mrs. Ayeni and her

child, the agents questioned Mrs. Ayeni regarding her

husband’s whereabouts and how they had paid for several

expensive wristwatches the agent had found in the apartment.

The CBS crew followed and taped the agents as they searched

the apartment and the Ayenis’ belongings. They took close-up

pictures of the interiors of closets, personal letters, personal

financial records, family pictures, and even of a homey maxim

about marriage hanging on the wall. Throughout the search,

Jorgensen, the CBS producer, interviewed an agent wearing a

wireless microphone provided by the CBS crew. In the foyer

of the Ayeni apartment, the CBS crew elicited from this agent

his views on the modus operandi of people who commit credit

card fraud and the tools of their trade. During the sequence

of the tape, the agent “implied the complicity of other residents

of the Ayeni apartment.” (Am. Compl. P. 37.)

After about 20 minutes of taping, the CBS crew left the

premises with Mottola and several agents. The crew

videotaped one of the departing agents expressing

disappointment that no evidence of credit card fraud had been

found. The remaining agents did not complete the search until

approximately 9:35 p.m., more than three and one-half hours

after the initial entry and an hour after the camera crew left.

The only material seized from the apartment was a family

photograph of the Ayenis, also videotaped by CBS.

Mrs. Ayeni’s husband, Babatunde, was subsequently

indicted for credit card fraud. The District Court (the

Honorable Jack B. Weinstein, presiding) denied CBS’ Motion

To Quash Mr. Ayeni’s subpoena for the videotape of the

search. United States _v. Sanusi et al., (E.D.N.Y.1992).

Mrs. Ayeni and Kayode thereafter instituted a Federal civil

action for damages against Mottola, other Unknown Agents

and Postal Inspectors, CBS Inc. and Meade R. Jorgensen,

citing constitutional violations under this Court’s decision in

Bi Six Uni wry Federal_B

Narcotics, 403 U.S. 388, 404 n.5, 91 S.Ct. 1999, 2009 n.5, 29

L.Ed.2d 619 (1971). The Ayenis alleged also common law tort

claims against the CBS defendants, as well as claims for

injunctive and declaratory relief.‘

The CBS defendants admitted they had permission from

the Secret Service and Department of Justice to videotape the

execution of the search warrant in the Ayeni apartment. The

Secret Service admitted giving permission, stating CBS had

been “let along on a number of outings" with the agents "in the

field." (App. Opp. Brf. p. 12-13 and referenced record

citations.)’ CBS entered with the agents under the warrant’s

authority. CBS received permission in the criminal case to

obscure the identity of its “confidential informant on the

version of the tape produced,” one of the agents who

participated in the search of the Ayeni apartment. This

“confidential informant" was Mottola. (Ibid.) Neither Mottola

nor CBS claims that CBS was assisting Mottola and the agents

in execution of the warrant.

The Second Circuit Court of Appeals, in a published

opinion, affirmed the District Court’s denial of Mottola’s

motion to dismiss the complaint, rejecting as a matter of law

his claim of qualified immunity from civil suit under the Bivens

case for his involvement in the media’s illegal entry into the

Ayeni home and participation in the search under color of

Federal authority. Ayeni v. Mottola, 35 F.3d 680 (2d Cir.

1994); Ayeni v. CBS, Inc,, 848 F.Supp. 362 (E.D.N.Y. 1994).

The issue of the presence of unauthorized persons during the

search of the Ayeni home is only one of the issues addressed

by the Second Circuit. The Second Circuit upheld

“The Ayenis have since entered a confidential settlement with the

CBS defendants, Jorgenson and CBS, Inc.

>*app. Opp. Brf” refers to Appellees’ Opposing Brief filed in

response to Mottola’s Opening Brief on appeal to the Second Circuit Court of

Appeals.

constitutional claims based on the extent of the agents’ use of

physical force, the intrusiveness and excessiveness of the

search, and the agents’ entry, detention and search prior to

obtaining the warrant. The Court found that unresolved

material issues of fact remained for the jury to decide with

respect to these issues. 35 F.3d at 688-691. (App. p. 14a -

21a.)© The Second Circuit found also that the video and

sound recordings made by CBS and the Government agents

were “seizures” under the Fourth Amendment, and rendered

the search excessively intrusive. 35 F.3d at 688. (App. p. 15a -

16a.) Mottola does not seek review as to these aspects of the

Second Circuit’s decision in this Court.

Mottola’s Petition concerns only the Second Circuit’s

decision that he could not claim qualified immunity for his

conduct in bringing CBS along on the search. The Second

Circuit concluded that (1) "Mottola exceeded well-established

principles when he brought into the Ayeni home persons who

were neither authorized by the warrant to be there nor serving

any legitimate law enforcement purpose by being there. A

private home is not a soundstage for law enforcement

theatricals...," and (2) "... an objectively reasonable officer

could not have concluded that inviting a television crew or any

third party not providing assistance to law enforcement -- to

participate in a search was in accordance with Fourth

Amendment requirements." 35 F.3d at 686. (App. p. 10a.)

REASONS FOR DENYING THE WRIT

Mottola claims his petition should be granted because the

Second Circuit failed to apply correct standards in determining

®* App." refers to the Appendix filed by Mottola in support of his

Petition.

the existence of “clearly established" law, and its approach

conflicts with the approach of other Circuits. Mottola is

wrong. Contrary to Mottola’s assertions, there are no

conflicting, controlling appellate court decisions, either from

the Second or other Circuits, which the Second Circuit should

have, but failed to consider. The case law Mottola cites as the

basis for his claim consists of two, unpublished District Court

and one State Court decision from other jurisdictions which

had no legal significance in the Second Circuit’s analysis.

Rather, the Second Circuit followed the controlling and

important appellate decisions which fully support its decision.

Moreover, the conflict among the Circuits Mottola claims

exists is based on his erroneous representation that the Second

Circuit relies only on its own law and the law of this Court to

determine whether a constitutional right has been "clearly

established." The Second Circuit does not engage in such a

practice and did not do so in this case, instead considering

important and controlling decisions from this Court, the

Second Circuit and other jurisdictions, which is the appropriate

procedure.

For these reasons and the reasons stated below, Mottola’s

Petition should be denied.

ARGUMENT

THE SECOND CIRCUIT RELIED ON WELIL-

DEVELOPED PRINCIPLES OF CONSTITUTIONAL

LAW IN FINDING IT "CLEARLY ESTABLISHED"

THAT AN OFFICER’S USE OF A SEARCH WARRANT

TO PERMIT UNAUTHORIZED INDIVIDUALS TO

ENTER PRIVATE PROPERTY, SEARCH AND SEIZE

FOR NO LAW ENFORCEMENT PURPOSE VIOLATES

THE FOURTH AMENDMENT.

Mottola does not dispute that his conduct exposed him to

prosecution for criminal trespass under New York State law

and for violation of 18 U.S.C. § 3105, as well as common law

causes of action such as trespass and conversion. Nor does

Mottola challenge the Second Circuit’s conclusion that his

conduct was unconstitutional, only that when he brought CBS

along on the search, the then existing law did not clearly

establish that his conduct was unconstitutional. Mottola’s

argument is unfounded and does not merit Supreme Court

review.

Government officials performing a discretionary function

are immune from liability for civil damages unless their

conduct violates "clearly established statutory or constitutional

rights of which a reasonable person should have known."

Harlow _v, Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738,

73 L.Ed.2d 396 (1982). This Court, in Anderson_y. Creighton,

483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987),

delineated the parameters controlling the inquiry into whether

the claimed Constitutional right was "clearly established" at the

time of the officer’s alleged actions and whether a reasonable

officer would have been aware of the right:

"The contours of the right must be sufficiently clear

that a reasonable official would understand that what

he is doing violates that right. This is not to say that

an Official action is protected by qualified immunity

unless the very action in question has previously been

held unlawful...{Citation omitted]; but it is to say that

in light of pre-existing law the unlawfulness must be

apparent...[Citation omitted.]".

The Anderson Court recognized further that even where the

right has been found to be “clearly established,” the official

may still be immune from suit if he can show he was

objectively reasonable in mistakenly concluding that his acts

were constitutional. Id.

The Anderson test permits finding a clearly established

right even where an earlier decision is not directly on point

with the current facts. See Mitchell v. Forsyth, 472 U.S. 511,

535 n.12.,105 $.Ct. 2806, 2820 n.12, 86 L.Ed.2d 411 (1985). In

Mitchell this Court concluded,

"We do not intend to suggest that an official is always

immune from liability or suit for a warrantless search

merely because the warrant requirement has never

explicitly been held to apply to a search conducted in

identical circumstances..."

In Shabazz _v. Coughlin, 852 F.2d 697, 701 (2d Cir. 1988), the

Second Circuit concluded that in the absence of a decision on

point, the Court must look for the presence of cases

“foreshadowing” a ruling on the issue. In Jefferson v. Ysleta

Indep. Sch. Dist., 817 F.2d 303, 305 (Sth Cir. 1987), the Fifth

Circuit found that a court does not have to find "...precedent

which is factually on all-fours with the case at bar....It suffices

that the [agent] be aware of general well-developed legal

principles.” The approach taken by these circuits is entirely

consident with the Anderson Court’s admonition that raising

“extremely abstract rights" to the level of “clearly established"

rights would result in an officer’s “virtually unqualified

liability." Anderson _v, Creighton, supra, 483 U.S: at 639, 107

S.Ct. at 3039.

At the outset, the issue before the Second Circuit was

purely a question of law. See Elder v.Holloway, U.S.__,114

S.Ct., 1019, 1023, 127 L.Ed.2d 344 (1994). Mottola does not

ask that any of the Court’s findings be remanded for jury

resolution, arguing only that the Court’s legal rulings that his

conduct violated clearly established law and that a reasonable

officer would have been aware that his conduct was

unconstitutional, were erroneously based on general or abstract

principles. Because the Second Circuit’s decision is correctly

based on controlling time-hewn legal principles which for years

have been the accepted guidelines for reviewing law

enforcement officers’ actions in the context of the Fourth

Amendment, Mottola’s Petition should be denied.

At the time the Second Circuit ruled, there were not yet

any decisions specifically holding that an agent who allows the

media into a private home to participate in execution of a

search for non-governmental purposes’ violates the

Constitution. Such “on all fours" precedent was not, however,

required. Mottola’s conduct was "...sofar from then well

established acceptable constitutional behavior that no case law

precedent was needed to alert him to the fact that the

execution of a warrant for the benefit of private persons

violated the Constitution....". Ayeni_v. CBS Inc., supra, 848

F.Supp. at 368.’

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...."

Entering a private home without consent pursuant to a search

warrant is a power “exclusively reserved to the State." Flagg

Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56

L.Ed.2d 185 (1978). The touchstone for analyzing whether

governmental action violates the Fourth Amendment is thus

"District Judge Weinstein compared Mottola to a “rogue policeman”

using his official position to steal from a private home. |d.

whether that action was “reasonable.”

As the Second Circuit correctly noted, the reasonableness

requirement applies both to the decision whether to conduct

a search and to the manner and scope of the search and

seizure that is carried out. 35 F.3d at 684. (App. p. 6a.) The

controlling case law defining the general inquiry for

determining reasonableness has made clear over the years that

government officials’ discretion in their execution of a search

warrant is limited to either,

(a) actions expressly authorized by the warrant...or

(b) such further actions as are impliedly authorized

because they are reasonably related to accomplishing

the search authorized by the warrant or

accomplishing legitimate law enforcement

objectives..."

35 F.3d at 685. (App. p. 8a.)

In articulating these principles, the Second Circuit cited to

and relied on the decisions of this Court, as well as its own

decisions and those of the Ninth and D.C. Circuit Courts of

Appeals. Id.; see Graham v.Connor, 490 U.S. 386, 395, 109

S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989); see also Tennessee

y. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 1699-1700, 85

L.Ed.2d 1 (1985); Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388, 394 n.7,91 S.Ct. 1999,

2004 n.7, 29 L.Ed.2d 619 (1971); United States v. Matias, 836

F.2d 744, 747 (2d Cir. 1988); United States v. Crozier, 777 F.2d

1376, 1381 (9th Cir. 1985); United States v. Heldt, 688 F.2d

1238, 1260 (D.C. Cir. 1981), cert. denied, 456 U.S. 926, 102

S.Ct. 1971, 72 L.Ed.2d 440 (1982); Delaware vy. Prouse, 440

U.S. 648, 654-655, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979).

The law thus clearly held at the time of Mottola’s performance

that intrusions into a private dwelling by law enforcement

agents must be authorized, either expressly by the warrant or

impliedly in furtherance of a legitimate law enforcement

purpose. Mottola’s actions here are not even claimed to have

been authorized by the warrant or other circumstances.

These restrictions limiting an officer’s discretion insofar as

it concerns an officer’s non-consensual entry into a private

home are rooted in the privacy element of the Fourth

Amendment. The Second Circuit, relying on this Court’s

decisions, explained that,

‘The protection of privacy from encroachment by

government officials is the “‘principal object’ of the

[Fourth] Amendment.’....The home has properly been

regarded as among the most highly protected zones of

privacy....’

35 F.2d at 684-685, citing Soldal v.Cook County, U.S. ,113

S.Ct. 538, 545, 121 L.Ed.2d 450 (1992) [citing Warden,

Maryland Penitentiary v, Hayden, 387 U.S. 294, 304, 87 S.Ct.

1642, 1648-49, 18 L.Ed.2d 782 (1967)]; Winston v. Lee, 470

U.S. 753, 758, 105. S.Ct. 1611, 1615, 84 L.Ed.2d 662 (1985);

and additional citations; see also Griswold v. Connecticut, 381

U.S. 479, 484, 85 S.Ct. 1678, 1681-1682, 14 L.Ed.2d 510 (1965);

, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29

L.Ed. 746 (1886). Under these clearly enunciated principles of

Constitutional law, it is manifest that Mottola’s unauthorized

actions violated the Ayenis’ constitutional right to be free from

governmental intrusion into their private home and lives. A

law enforcement officer would have been aware of these

principles and it would have been apparent to the officer that

unauthorized actions such as those undertaken by Mottola

were constitutionally deficient.

Mottola does not contend (nor could he) that his actions

were expressly authorized by the warrant. The warrant

identified the premises to be searched, the items to be

examined and seized and those who could conduct the search.

In this instance the warrant authorized only Mottola and "...any

Authorized Cfficer of the United States" to conduct a search

wre z< =“ Se ts So Ts

~MQOMRK BOSOSGei sa Sk wee.

for evidence of credit card fraud. Ayeni vy. Mottola, supra, 35

F.3d at 685. Nor does Mottola contend that his actions in

bringing unauthorized private persons into the Ayeni home

were impliedly authorized because they were in furtherance of

any legitimate law enforcement purpose. It is not disputed

that Mottola and the Secret Service brought the CBS crew and

Jorgenson along on the search in order to help them obtain

video and audiotaped material for the TV newsmagazine

“Street Stories.” Accordingly, it was clear under the controlling

legal principles discussed above, and Mottola should have

knowa, that his conduct was unconstitutional.

The analysis need not, although it could, stop here. At the

time Mottola took CBS along on the search, there also existed

factually comparable controlling Federal appellate case law

applying these principles and statutes which further establish

that his actions were unconstitutional. Cases interpreting the

legal principles discussed ante have found that the authority of

law enforcement officials to enter private property, created

expressly or impliedly by warrant or statute, does not include

their bringing unauthorized individuals along to participate in

or conduct a search and effect seizures. - Such an illegal entry

and search violates the Fourth Amendment. See United States

y. Sanchez, 509 F.2d 886 (6th Cir. 1975); see also United States

y.Hare, (6th Cir. 1979); United States v. Warren, 550 F.2d 219

(Sth Cir.), cert. denied, 434 U.S. 1016, 98 S.Ct. 735, 54 L.Ed.2d

762 (1978).

In Sanchez, state officers with a warrant to search for

narcotics learned there might also be explosives present on the

property to be searched. They asked an agent from the

Bureau of Alcohol, Tobacco and Firearms ("ATF") to assist in

searching for the explosives. The ATF agent, although he had

the time, did not obtain a separate, Federal warrant to search

for explosives. The agents found explosives, but no narcotics.

The Sixth Circuit suppressed the explosives, finding that the

Federal agent’s unauthorized presence on the property was

unconstitutional. 509 F.2d at 889. The basis for the Court’s

eee

decision was that the ATF agent did not have "...aright to be

on the premises." Jd, at 890. In Warren, the Fifth Circuit

suppressed evidence of narcotics where DEA agents, suspicious

of narcotics smuggling, boarded a vessel with the Coast Guard

without a search warrant claiming justification under the

latter’s authority to make safety inspections. The Court found

the search and seizure by the DEA unconstitutional because,

(1) the Coast Guard was not authorized to delegate its

authority to inspect to other branches of the government, and

(2) the DEA agents had no authority to board the ship. 550

F.2d at 225.°

That Mottola’s actions violated the Fourth Amendment is

also supported by statutory requirements. 18 U.S.C. § 3105

(1988) provides,

"A search warrant may in all cases be served by any

of the officers mentioned in its direction or by an

officer authorized by law to serve such warrant, but

by no other person, except in aid of the officer on his

requiring it, he being present and acting in its

®The Sanchez Court’s devision has been criticized by other courts

insofar as it is based on the Court's finding that the ATF agent had time to

obtain a warrant yet failed to do so prior to entering the property. See, ¢.g.,

United States v. Johnson, 707 F.2d 317, 320-323 (8th Cir. 1983). The cases

criticizing Sanchez do not disagree with the Court's finding that such actions

are unconstitutional, only with the reasoning supporting the Court's conclusion

that the ATF agent had not been authorized to enter and search.

in Bills v. Aseltine, 958 F.2d 697 (6th Cir. 1992), decided after the

Ayeni search, officers executing the warrant invited a private security guard to

conduct an inspection of the private dwelling they controlled subject to the

search. In Bills, the Court concluded that issues “concerning the manner in

which the search warrant was executed turned on factual questions that should

have been submitted to the jury". Jd. at 705. The Court did, however, support

the proposition that permitting the presence of a third party not assisting in the

search violates the Constitution and based that rationale in part on the prior

execution.”

Although the statute uses the word “serve” and not “execute,”

it has been construed to to apply to both actions. See United

States _v. Wright, 667 F.2d 793, 797 (9th Cir. 1982); United

States _v, Clouston, 623 F.2d 485, 486 (6th Cir. 1980); United

States _v. Gervato, 474 F.2d 40, 45 (3d Cir.), cert, denied, 414

U.S. 864, 94 S.Ct. 39, 38 L.Ed.2d 84 (1973). The Second

Circuit found Mottola “clearly violated Section 3105." 35 F.3d

at 687.

The Second Circuit correctly relied on 18 U.S.C. § 3105 as

providing “some basis for giving content to the [Fourth]

Amendment’s generalized standard of reasonableness...,"

likening the provision to 18 U.S.C. § 3109 (the “knock and

announce statute"), the requirements of which 2 majority of

circuits have concluded “coincide with the reasonableness

requirements of the Fourth Amendment.” 35 F.3d at 687 and

n.9 (App. p. Ila - 13a.) The cases surveyed by the Second

Circuit construing Section 3105 establish that “the presence of

a third party who is assisting authorized officers in their search

does not violate the Fourth Amendment’s reasonableness

requirement...[{'°]." 35 F.3d at 687. (Emphasis included). For

example, in United States v. Clouston, 623 F.2nd 485, 486-487

(9th Cir. 1980), the Sixth Circuit found that the presence of

telephone company employees at a search in a private

residence was constitutional because the employees were

assisting the officers and thus authorized under 18 U.S.C.

§ 3105 to be present and act in execution of the warrant. Id.

at 1091. These decisions accept and enforce the statute’s clear

prohibition: no person other than authorized agents and

properly designated private parties necessary for the warrant’s

M0s-e United States v. Clouston, 623 F.2d [485] at 486-87...[6thCir.

1980]; United States v. Gambino, 734 F.Supp. 1084, 1091 (S.D.N.Y.1990)...cf.

In_re Southeastern Equipment Co. Search Warrant, 746 F.Supp. 1563, 1577

(S.D. Ga. 1990)...; United States v. Schwimmer, 692 F.Supp. 119, 126-27

(E.D.N.Y. 1988)...

execution may be present. They and Section 3105 clearly

notified Mottola of the wrongfulness of his conduct.

Federal Rule of Criminal Procedure 41, enacted in 1948,

provides an additional basis for interpreting the Fourth

Amendment’s reasonableness requirement as excluding the

actions undertaken by Mottola. Rule 41, which regulates the

issuance of search warrants, has been interpreted by the courts

for the proposition that no unauthorized persons may assist in

executing the warrant except in situations of exigency or

necessity. See, e.g.,New York Telephone Co. v. United States,

434 U.S. 159, 98 S.Ct. 364 (1971)."

Conversely, the presence of a third party not assisting

authorized officers would violate the Fourth Amendment. This

conclusion is fully in accord with the test for determining

whethez law has been “clearly established” enunciated by

Anderson and Harlow. The Seventh Circuit, interpreting this

test, concluded in Donovan v, City of Milwaukee, 17 F.3d 944,

952 (7th Cir. 1994),

"In the absence of controlling authority on point, ’we

seek to determine whether there was such a clear

trend in the case law that we can say with fair

assurance that the recognition of the right by a

controlling precedent was merely a question of time.”"

Under the controlling authorities discussed above, it was

inevitable that when faced with a fact pattern such as that

presented by Mottola’s conduct, a Court whose decisions are

broadly controlling would recognize that such conduct violates

the Fourth Amendment. Indeed, the fact that the

Rederal Rule of Criminal Procedure 41(c) directs that a search

warramt be directed “to a civil officer of the United States authorized to

enforce or assist in enforcing any law thereof...[and] shall command the officer

to search....”

unauthorized private parties brought by the officer along on

the search are members of the media who video and

audiotaped the Ayenis, illegally seizing their statements and

images of them, their home and their personal effects, renders

the finding of constitutional violation even more compelling.

The Second Circuit made the following poignant observation:

“The unreasonableness of Mottola’s conduct in Fourth

Amendment terms is heightened by the fact that, not

only was it wholly lacking in justification based on the

legitimate needs of law enforcement, but it was

calculated to inflict injury on the very value that the

Fourth Amendment seeks to protect -- the right to

privacy. The purpose of bringing the CBS camera

crew into the Ayenis’ home was to permit public

broadcast of their private premises and thus to

magnify needlessly the impairment of their right to

privacy.”

35 F.3d at 686.

Mottola simply ignores the mountain’ of authorities clearly

establishing the right claimed by the Ayenis. In order to

establish his claim that the right had not been clearly

established and that he could not have reasonably been aware

his actions violated the Constitution, Mottola relies on

unsubstantiated factual assertions and the existence of

irrelevant, non-binding precedent. Mottola cites to articles and

publications to substantiate his otherwise unsupported factual

assertion that ‘conventional news programs and less traditional

reality-based “cop shows” filmed all types of police action,

including the execution of search warrants in private

residences.’ (Pet. p. 8-9.) These articles and publications are

not, however, part of the record and should noi be considered

by this Court. See New Haven Inclusion Cases, 399 U.S. 392,

450 0.66, 90 S.Ct. 2054, 2088 n.66, 26 L.Ed.2d 691 (1970). Nor

is there anything else in the record to support Mottola’s factual

assertion.

Moreover, that Mottola’s actions may have been "common

place” is irrelevant to establish whether a reasonable law

enforcement officer would have known he was breaking the

law, when the unlawfulness of the officer’s actions is obvious

under the clearly established law. Indeed, Mottola does not

dispute that in undertaking such actions, other officers were

committing State and Federal crimes and exposing themselves

to civil suits for numerous common law causes of action. At

least one State court decision in New York, the very

jurisdiction where Mottola was operating, had held that such

trespassory conduct violates the Constitution. A New York

Court, in a published 1981 opinion deciding that the officers in

question had committed trespass by authorizing the media to

enter private property under a search warrant, noted:

"Ifthe news media were to succeed in compelling an

uninvited and non-permitted entry into one’s private

home whenever it chose to do so, this would be

nothing less than a general warrant, equivalent to the

writs Of assistance which were so odious to the

American colonists. William Pitt, later Lord

Chatham, found this unchecked intrusion so offensive

to a free people that he denounced it in words which

again bear repetition:

*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!’"

Anderson _v, WROC-TV, 109 Misc. 2d 904, 441 N.Y.S.2d 220,

226, 7 Media L.Rep 1987 (Sup.Ct. Monroe Co. 1981).

The real thrust of Mottola’s argument, however, lies in his

reliance on irrelevant, distinguishable case law from other

jurisdictions which has no precedential or controlling value in

the Federal court system. Higbee v. Times-Advocate, 5

Med.L.Rptr. 2372 (S.D. Ca. 1980) (unpublished); Moncrief v.

Hanton, 10 Med.L.Rptr. 1620 (N.D. Oh. 1984) (unpublished);

Prahl_v. Brosamie, 98 Wis.2d 130, 295 N.W.2d 768 (Wis.App.

1980). Mottola asserts that these decisions should be followed

because the facts in them are closely analogous to the facts of

this case. He further asserts that the courts in these cases held

that “the presence of news media at the execution of a search

warrant does not violate the Fourth Amendment." (Pet. p. 5.)

Mottola then draws the conclusion that the decisions of

the Supreme Court and the lower Federal Circuit Courts,

including those discussed ante, are too “general” to “clearly

establish” the law because the facts in those cases are not as

“on point” as the facts in the less controlling decisions he cites.

Mottola then parlays this reasoning into the position that his

Petition should be granted so this Court can make the

following determination: Whether courts, in determining

“clearly established" law, must ignore controlling decisions and

follow decisions by courts of inferior jurisdiction, whether

unpublished, distinguishable or contrary to controlling

constitutional principles, if the facts of the latter decisions are

more closely analogous to the case being decided. Mottola’s

argument is unsupported by the case law and logically flawed.

In presenting his claim, Mottola mistakenly assumes that

the words “clearly establish" require court decisions that are

“on all fours” with the case being decided. As discussed above,

the Supreme Court cases and controlling lower court decisions

interpreting these words have no such requirement. See

Anderson _v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039,

97 L.Ed.2d 523 (1987) (the “very action in question...[{need not

have] previously been held unlawful,....[I]nlight of preexisting

law the unlawfulness must be apparent...."); see also Shabazz

y. Coughlin, 852 F.2d 697, 701 (2d Cir. 1988); Jefferson _v.

Ysleta Indep, Sch. Dist., 817 F.2d 303, 305 (Sth Cir. 1987);

Boswell v, Sherburne County, 849 F.2d. 1117, 1121 (8th Cir.),

cert. denied, 488 U.S. 1010, 109 S.Ct. 796, 102 L.Ed.2d 787

(1989); Donovan _v, City of Milwaukee, 17 F.3d 944, 952 (7th

Cir. 1994). The controlling law set forth above establishes that

at the time Mottola threw open the Ayenis’ home and private

lives to the media under the pretext of a search warrant, the

Fourth Amendment’ prohibited him from __ enlisting

unauthorized individuals to participate in execution of a search

warrant in a private home for no legitimate official purpose.

The existence of controlling case law identifying such

unauthorized individuals as members of the media would not

have made the constitutional violation any clearer. Thus,

Mottola’s assertion that the law followed by the Second Circuit

was unduly “general” is misplaced.

Mottola is also incorrect in asserting that the case law he

cites should have been considered by the Second Circuit in its

analysis, or that its consideration would have obscured the

clearly established constitutional principles on which the Court

relied. Initially, although the Second Circuit does not cite to

the cases relied on by Mottola, this does not mean it failed to

consider them. Regardless of the role they played in the

Court’s analysis, the Court was right not to rely on them.

Higbee v. Times-Advocate, 5 Med.L.Rptr. 2372 (S.D. Ca. 1980)

and Moncrief v.Hanton, 10 Med.L.Rptr. 1620(N.D. Oh. 1984)

are unpublished trial court opinions with no precedential value.

The decision not to publish these decisions manifests an

intention by those courts not to establish the law. Rather,

these decisions indicate merely the resolution of a contested

litigation and affect only those litigants. It would, in fact, be

unreasonable for any Federal Court to purport to rely upon

opinions the authors of which have determined will not be

made available for use as precedent or, in fact, be known at all

absent accidental discovery.”

12% is compelling to note that the Sixth and Ninth Circuit Rules

preclude or disfavor citation of unpublished opinions of those Circuits except

for establishing “res judicata, estoppel, or the law of the case.” Sixth Circuit

Even if these decisions were published, their precedential

value would be generally limited to subsequent decisions by

their respective courts. A District Court decision “will not

ordinarily ‘“clearly establish" the law even of its own circuit,

much less that of other circuits.""’ Woodward v, City of

Worland, 977 F.2d 1392, 1397 (10th Cir.), cert. denied,

_U.S.__, 113 S.Ct. 3038, 125 L.Ed.2d 724 (1993), citing to

Martin x. Schwartz & John E. Kirklin, Section 1983 Litigation:

Claims, Defenses, and Fees § 9.20, at 537 (2d ed. 1991). A

District Court decision is not binding precedent for decisions

of other District Courts. Rather, a District Court is bound by

decisions of the Court of Appeals of the Federal Circuit where

it sits. See Fox v. Arcadia State Bank, 937 F.2d 1566, 1570

(11th Cir. 1991).

Indeed, even ifthe unpublished decisions cited by Mottola

were controlling authority in their jurisdictions, which they are

not, a reasonable officer in New York would not have been

aware of them; officers are reasonably expected to be aware of

controlling law that is either national in scope or more local,

thus more directly controlling of the officer’s actions. It is the

existence of these cases which Mottola claims rendered the law

less than “clearly established" at the time he invaded the

Ayenis’ home with CBS. Thus, Mottola cannot satisfy either

aspect of the first prong of the Anderson test, i.e., lack of

Clearly established law of which a reasonable officer would

have been aware.

These cases were also decided erroneously under the then

existing clearly established principles of Constitutional law.

The Court in Moncrief found there was no violation of the

plaintiffs’ “right to privacy under the Fourth Amendment by

allowing the media to enter their premises along with the

police” because it erroneously concluded that a constitutional

violation required violation of the privacy right underlying non-

Rule 24(c); See Ninth Circuit Rule 36-3.

Fourth Amendment case law, e.g.,Roe v. Wade, 410 U.S. 113,

93 S.Ct. 715, 35 L.Ed.2d 147 (1973). The Court related the

privacy right claimed by the Moncrief plaintiffs to a “general

right of privacy" unrecognized by the Constitution. The Higbee

decision also turned erroneously on an unduly restrictive

characterization of the privacy right violated by the intrusion

of the media under color of a Federal search warrant. These

decisions were clearly erroneous under this Court’s decisions

cited ante which confirm that a right of privacy is firmly rooted

in the Fourth Amendment. Decisions of this Court holding as

such which were rendered after Moncrief and Higbee

supersede those decisions, further destroying any relevance

they may have had. See, e.g., Winston v. Lee, supra, 470 U.S.

at 758, 105 S.Ct. at 1615; Soldal v. Cook County, supra, 113

S.Ct. at 545.

Mottola’s reliance on the State case of Prahl v. Brosamle,

98 Wis.2d 130, 295 N.W.2d 768 (Wis.App. 1980) is also

improper. In Prahl a Wisconsin appellate court found it was

not unreasonable for a newscaster to film, then televise, the

search of a shooting suspect’s residence located in the same

building as offices and a laboratory. There was no previous

agreement between the government and the media to allow

participation by the media in the search, and the police did not

invite or directly participate in the filming. Even if Prahl were

applicable factually to this case, which it is not, it would not be

controlling on the issue of whether a Federal Constitutional

right had been clearly established at the time of the challenged

actions. Cf, Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215,

1219, 43 L.Ed.2d 570 (1975)(State cannot, as a matter of

Federal Constitutional law, impose restrictions on law

enforcement greater than those rejected by Supreme Court.)

Nor does Mottola’s apparent need for precise factual

identity work any better in relation to the second prong of the

test for qualified immunity -- the requirement that the officer

have been reasonably aware that his actions were

unconstitutional. This case is not like cases where

determination of the appropriateness of an officer’s challenged

acts depends upon the set of specific circumstances

surrounding them, e.g.,the use of force in effecting an arrest.

For example, it would not necessarily be clear that shooting a

suspect during an arrest always constitutes excessive force.

Under those circumstances the inquiry must focus on the

circumstances surrounding the arrest and whether the officer

was reasonably aware that his conduct under _ those

circumstances was unconstitutional.

Here, Mottola’s conduct fell within an entire category of

behavior which the law has clearly established to be

unconstitutional -- using his authority under a search warrant

to permit unauthorized, private individuals to enter a private

residence and participate in the search for no legitimate law

enforcement purpose related to execution of the warrant.

Under the controlling law, there are po circumstances under

which this behavior could be deemed constitutional. Mottola’s

interpretation of the words “clearly established" would render

most law enforcement officials unaccountable for obviously

unconstitutional conduct unless that precise conduct had been

found unconstitutional. Such a result demeans the integrity of

the law enforcement process by giving a “green light” to plainly

unconstitutional conduct which has not yet been brought to the

attention of the court.

Mottola has thus failed to establish that the Second

Circuit decided an “important question of Federal law which

has not been, but should be, settled by this Court, or has

decided a federal question in a way that conflicts with

applicable decisions of this Court." Supreme Court Rule

10.1(c). His Petition should be denied.

THIS CASE DOES NOT PRESENT FOR REVIEW

APPLICATION OF A LEGAL PRINCIPLE THAT IS

SUBJECT TO A CONFLICT IN THE CIRCUIT COURTS

OF APPEAL.

Mottola claims as a further ground for review by this

Court the existence of a conflict in the Circuit Courts of

Appeal “on the proper sources of legal authority to be used in

ascertaining whether a particular right has been clearly

established for purposes of overcoming a qualified immunity

defense." (Pet. p. 13.) Mottola premises this claim of conflict

on the erroneous assertion that the Second Circuit looks only

to its own and Supreme Court precedent to determine whether

a constitutional right has been “clearly established,” which

Mottola claims conflicts with the practice of other Circuits.

(Pet. p. 13.) The Second Circuit does not, as Mottola asserts,

engage in such a limited practice in determining the existence

of “clearly established" law. Accordingly, Mottola’s petition

should be denied.

Initially, assuming such a conflict exists, which it does not,

this Court’s decision in Elder v, Holloway, U.S. 114S.Ct.

1019, 127 L.Ed.2d 344 (1994) would have arguably resolved it.

The Elder Court explained that,

‘A court engaging in review of a qualified immunity

judgment should therefore use its “full knowledge of

its own [and other relevant] precedents." Davis, 468

U.S., at 192,n. 9.” (Emphases added.)

In any event, as discussed above, the Second Circuit does not

limit itself to review of its own and Supreme Court precedent

to determine whether a constitutional right has been “clearly

established." It did not do so in this case and its prior

decisions do not create such a restrictive approach. Thus,

Mottola can not establish that the Second Circuit’s

characterization as to what constitutes appropriate sources of

law for determining the existence of “clearly established"

constitutional law was in conflict with the decisions he cites.

Indeed, the Second Circuit’s approach was in accordance with

the approach taken by the Circuits identified by Mottola and

does not directly conflict with any of the cited approaches.

Moreover, consideration of decisions from jurisdictions other

than the Second Circuit and the Supreme Court, the approach

Mottola claims conflicted with the Second Circuit’s, would not

change the result in this case.

In Soares _v, State of Conn., 8 F.3d 917 (2d Cir. 1993), the

Second Circuit looked to its own and Supreme Court

precedent, as well as decisions from other circuits to see if the

claimed right had been recognized and if the government

official would have reasonably understood his actions violated

the right in question. In Shabazz v. Coughlin, 852 F.2d 697,

701 (2d Cir. 1988) the Court found that a court must look for

the presence of cases “foreshadowing” a ruling on the issue, or

cases in other circuits taking a certain stand. In Weaver v.

Brenner, 40 F.3d 527 (2d Cir. 1994), the Court reviewed

decisions from the Ninth, Fourth and Seventh Circuits in

determining the scope of a defendant’s rights under Miranda.

In this case, the Court reviewed decisions from the

Seventh, Ninth, Sixth and D.C. Circuit Courts of Appeal in

discussing the “clearly established" principles of Constitutional

law which compelled denial of Mottola’s claim. 35 F.3d at 685-

686 n. 4,5,6 & 8. The Court further reviewed decisions from

the Third, Fourth, Fifth, Sixth, Seventh and Tenth Circuit

Courts of Appeal and the Southern District of Georgia in

determining that “the prohibitions of...[18U.S.C.]section 3105

may be considered in determining “reasonableness” under the

Fourth Amendment...." 35 F.3d at 687 and n.9. (App. p. 7a -

13a.)

A brief review of the approaches undertaken by other

Circuit Courts of Appeal in the decisions cited by Mottola

establishes that the conflict he claims mandates this Court’s

review does not in fact exist. Mottola claims the Tenth

Circuit’s approach is limited to its own and Supreme Court

precedent, citing Woodward v. City of Worland, 977 F.2d 1392

(10th Cir.), cert. denied, U.S. ,113 S.Ct. 3038, 125 L.Ed.2d

724 (1993). The Woodward Court found, however,

“We recently held that “[o}rdinarily, in order for the

law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or

the clearly established weight of authority from other

courts must have found the law to be as the plaintiff

maintains." [Citation omitted.]’

Other jurisdictions follow a nearly identical approach. In

Borucki v. Ryan, 827 F.2d 836 (1st Cir. 1987), the First Circuit,

without articulating a test, refers to cases from other

jurisdictions insofar as they discuss the right of privacy

articulated in cases decided by this Court. In Giuffre v. Bissell,

31 F.3d 1241 (3d Cir. 1994), the Third Circuit does not

articulate a test, but surveys Circuit Court decisions regarding

a criminal defendant’s Fifth Amendment right against self-

incrimination under this Court’s Miranda decision, without

referring to any existing, relevant Third Circuit decision. On

another issue related to the right to counsel, the Court cites

only to precedents from this Court and its own decisions.

In Doe v. State of Louisiana, 2 F.3d 1412, 1416 (Sth Cir.),

cert denied, _U.S.__,114 S.Ct. 1189, 127 L.Ed.2d 539 (1994),

the Fifth Circuit articulates the following test:

"[fnj8. In examining preexisting law,

[aJs a general proposition, we will not rigidly

define the applicable body of law in determining

whether relevant legal rules were clearly established

at the time of the conduct at issue. See Harlow v.

Fitzgerald [457 U.S. 800 at 818, n. 32] 102 S.Ct.

[2727] at 2738, n. 32 [73 L.Ed.2d 396]. Relying solely

on Fifth Circuit and Supreme Court cases, for

example, would be excessively formalistic, but they

will loom largest in our inquiries. In determining

what the relevant law is, then, a court must

necessarily exercise some discretion in determining

the relevance of particular law under the facts and

circumstances of each case, looking at such factors as

the overall weight of authority, and the status of the

courts that render substantively relevant decisions, as

well as the jurisdiction of the courts that render

substantively relevant decisions...[citation omitted]."

In Boswell v, County of Sherburne, 849 F.2d. 1117, 1121

(8th Cir.), cert denied, 488 U.S. 1010, 109 S.Ct. 796, 102

L.Ed.2d 787 (1989), the Eighth Circuit canvasses other Circuit

Courts’ decisions to address what it considers an “open

question,” that is whether pre-trial detainees are afforded

broader rights to emergency care under the Fourteenth

Amendment than convicted criminals. The Court decided it

did not need to answer the precise question, in part because

this Court had not yet answered the question and the Circuit

Courts had provided various responses.

In Donovan _v, City of Milwaukee, supra, 17 F.3d at 952,

the Seventh Circuit articulates the following test:

‘In ascertaining whether a particular right has been

“clearly established" within the meaning of Harlow,

this court has not required binding precedent from

the Supreme Court or the Seventh Circuit.

Cleveland-Perdue, 881 F.2d at 431. In the absence of

controlling authority on point, “we seek to determine

whether there was such a clear trend in the case law

that we can say with fair assurance that the

recognition of the right by a controlling precedent was

merely a question of time." Id,’

In Kirkpatrick v, City of Los Angeles, 803 F.2d 485, 490

(9th Cir. 1986), the Ninth Circuit articulates the following test:

"We start by examining precedent from this court and

the Supreme Court to determine if the right was

clearly established at the time of Gates’ and Aggas’

actions. In the absence of binding precedent from

this court or the Supreme Court, we look to decisions

from other courts to determine ifthe right was clearly

established...[citation omitted]. If we are required to

examine decisions from other courts, the likelihood

that this court or the Supreme Court would adopt the

analysis of the other courts is also part of our

inquiry...."

In Hunter _v, District of Columbia, 943 F.2d 69, 78

(D.C.Cir. 1991), the D.C. Circuit Court of Appeals does not

articulate a test, but canvasses decisions from other courts

addressing the scope of the right to be free from excessive

non-deadly force by a law enforcement officer. Finally,

although not cited in Mottola’s Petition, the Sixth Circuit, in

the case of Ohio Civil Service Employees Ass'n v, Seiter, 858

F.2d 1171 (6th Cir.), concluded that to find “clearly established

law," a court should undertake the following approach: It

should first look to binding precedent of the Supreme Court,

its own Circuit or itself, then it should look to law from other

jurisdictions if that law is clear and foreshadowed by directly

applicable authority. The Court noted,

"Here a mere handful of decisions of other circuit

and district courts, which are admittedly novel, cannot

form the basis for a clearly established constitutional

right in this circuit...."

Id, at 1177-1178.

Although the Eleventh Circuit in Belcher v. City of Foley,

30 F.3d 1390, 1400 (11th Cir. 1994) refused to look at decisions

of the Fifth and Ninth Circuits, explaining that, ‘““wedo not

mean to imply that the law [of this Circuit] can be clearly

established for qualified immunity purposes by non-binding

precedent."...[citations omitted]’, the Court went on to

distinguish the two other circuit cases; it concluded that even

if the other decisions had been of the Eleventh Circuit, they

would not have clearly established the law regarding the

defendants’ conduct in that case. Thus, the language indicating

a narrow approach is dicta. This approach further does not

conflict intolerably with a review of non-binding precedent

from other jurisdictions which would foreshadow a subsequent

result in the Eleventh Circuit. The following principle, relied

on by this Court to dismiss a writ of certiorari as

"improvidently granted" in Layne & Bowler Corp. v. Western

Well Works Inc., 261 U.S. 387, 393, 43 S.Ct. 422, 423, 67 L.Ed.

712 (1923), is equally compelling in this case:

“[I]t is very important that we be consistent in not

granting the writ of certiorari except in cases

involving principles the settlement of which is of

importance to the public, as distinguished from that

of the parties, and in cases where there is a real and

embarrassing conflict of opinion and authority

between the Circuit Courts of Appeal...."

_ Accordingly, Mottola has failed to establish the existence

of an important question of Federal law requiring this Court’s

intervention, or an intolerable conflict of law among the Circuit

Court of Appeals. See Supreme Court Rule 10.1(a) and (c).

CONCLUSION

For the reasons stated above, Mottola’s Petition For Writ

of Certiorari should be denied.

Respectfully Submitted,