case law update

Officers Granted Qualified Immunity for Warrantless Entry to Recover Property

Applying the “consent-once-removed” doctrine for the first time since the Supreme Court’s 2009 decision in Pearson v. Callahan, the U.S. Court of Appeals for the Eleventh Circuit recently granted police officers qualified immunity after entering an individual’s residence to assist his former partner in obtaining property.

Following the end of an affair, a Florida Circuit Court entered an injunction against Harold Anthony Fish. Among other things, Fish was prohibited from having any firearms in his “care, custody, possession or control.” Margo Denise Riesco, the former lover of Fish, learned of the injunction through Fish’s sister.

On April 20, 2011, Riesco called Fish and informed him that she was on her way to his home in order to retrieve personal items she left there. Riesco requested an escort for the Holmes County, Florida Sheriff’s office because she feared for her safety during the encounter. Deputy Harrison trailed Riesco to Fish’s home and Deputy Loucks met them there. Riesco exited her vehicle and walked to the glass door, opening the door and entering Fish’s sunroom as the officers followed. Riesco knocked on the interior door, informing Fish she was there.

When Fish opened the door, he saw the deputies standing beside her. Riesco informed Fish, “I brought them to watch so I don’t steal nothing of yours, okay?” In response, Fish stated, “all right.” Deputy Harrison then asked Fish what personal items were left by Riesco, to which Fish responded, “It’s all in that drawer in there,” indicating the bedroom that adjoined the living room and kitchen area in which the parties were standing.

Deputy Harrison was aware of the injunction against Fish and observed through the bedroom door a large revolver hanging in its holster from one of the bedposts. Deputy Harrison also noticed guns under the bed and a large quantity of ammunition displayed in an urn. Deputy Harrison asked Fish, “you still got that injunction against you for firearms?” Fish replied that he still did have the injunction, but informed Deputy Harrison that the guns belonged to his son, Jared. After argument and resistance, Deputy Harrison arrested Fish.

The criminal charges against Fish were ultimately dismissed. However, Fish filed a complaint in a Florida Circuit Court, asserting claims against Holmes County’s Sheriff and Deputies Harrison and Loucks. Along with various state law claims, Fish asserted claims of illegal search and seizure in violation of his Fourth Amendment rights. The deputies removed the case to district court, where Fish voluntarily dismissed his claims against the Sheriff.

The district court entered an order granting summary judgment in favor of both deputies on Fish’s federal constitutional claims. The district court held that the deputies were entitled to qualified immunity from Fish’s Fourth Amendment claims. Fish appealed the district court’s decision to the U.S. Court of Appeals for the Eleventh Circuit.

The doctrine of qualified immunity protects government officials who are sued under 42 U.S.C. § 1983 for money damages in their personal, or individual, capacities, but only so long as “their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.” The court of appeals stated that when determining whether the unlawfulness of an official’s actions was “clearly established,” the requisite question is whether the state of the law on the date of the defendants’ alleged misconduct placed the defendants on “fair warning that their alleged treatment of [the plaintiff] was unconstitutional.”

Fish first asserted that the deputies violated his Fourth Amendment rights by entering his sunroom. The court of appeals disagreed and found that the deputies were entitled to qualified immunity on this claim. The deputies followed Riesco, whom they knew was familiar with Fish’s home, straight through the sunroom to the interior wood door. The court of appeals stated that this entry was a variation of the “consent-once-removed doctrine,” which permits a warrantless entry by law enforcement “when consent to enter has already been granted to an undercover officer or informant who has observed contraband in plain view.” At the time of this appeal, the court of appeals had not yet addressed the “consent-once-removed” doctrine since the Supreme Court’s decision in Pearson v. Callahan, 555 U.S. 223, 229 (2009). Still, the court of appeals found that the deputies were able to rely on the doctrine in this case. 

The court of appeals also disagreed with Fish that the deputies unlawfully entered his home from the sunroom and found that the deputies were entitled to qualified immunity. Here, Fish consented to the deputies’ entry by responding “all right” when Riesco said she brought the deputies with her “to watch so I don’t steal nothing of yours, okay?” Though Fish argued that any consent was not effective because it was prompted by a show of official authority, the court disagreed as neither deputy brandished his weapon or demanded entry.

Fish next contended that the deputies violated his constitutional rights when they seized firearms within his home. Upon entering the home, the deputies asked Fish where Riesco’s belongings were located, to which Fish directed the deputies to a drawer in the bedroom. The court of appeals found that Fish effectively consented to the deputies’ presence and extended it to the bedroom, where Deputy Harrison saw the revolver hanging from the bedpost, guns under the bed, and a large quantity of ammunition. Thus, because Deputy Harrison had Fish’s consent to enter the bedroom, and saw those items in plain view, the court of appeals did not find that the deputies violated his constitutional rights.

Lastly, the court of appeals considered Fish’s argument that the deputies lacked probable cause to arrest him. An arrest is unreasonable and violates and individual’s Fourth amendment rights when it is not supported by probable cause. However, even if an officer has effected an arrest without probable cause, he is still entitled to qualified immunity if the arrest was supported by “arguable probable cause.” Deputies Harrison and Loucks had adequate knowledge of the injunction and they lawfully viewed the firearms and ammunition in Fish’s residence. Therefore, the court of appeals found it clear that the deputies had, at the very least, “arguable probable cause” to arrest Fish for that offense.

As such, the U.S. Court of Appeals for the Eleventh Circuit affirmed the district court decision.

Read the full case: Fish v. Brown



This case law update was written by Michael J. Sgarlat, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: qualified immunity, michael j sgarlat


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