Crooker v. Metallo

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                        

No. 93-1370

          STEPHEN S. CROOKER AND PAMELA A. CROOKER,

                    Plaintiffs, Appellees,

                              v.

                    PAUL METALLO, ET AL.,

                   Defendants, Appellants.

                                        

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. Frank H. Freedman, U.S. District Judge]
                                                    

                                        

                            Before

                     Breyer, Chief Judge,
                                        
              Selya and Boudin, Circuit Judges.
                                              

                                        

   Stephen S. Crooker and Pamela A. Crooker on brief pro se.
                                           
   Scott Harshbarger, Attorney  General, and William  J. Meade,
                                                              
Assistant Attorney General, on brief for appellants.

                                        
                      September 29, 1993
                                        

     SELYA,  Circuit  Judge.   The  issue  presented in  this
     SELYA,  Circuit  Judge.
                           

appeal is whether the defendants, parole officers, violated a

clearly   established  constitutional   right   of  which   a

reasonable person would have known when, in August 1989, they

arrested plaintiff Stephen S. Crooker  at his home for sundry

parole violations.  The officers conducted a protective sweep

incident to  the  arrest.   Stephen  Crooker  and  his  wife,

Pamela, brought suit, pursuant to 42 U.S.C.    1983, alleging

that  the  search  violated  their  Fourth Amendment  rights.

Particularly, they allege that,  during the sweep, an officer

lifted  their mattress from its box spring and looked between

the two.1   The district  court denied the  defendants' claim

of qualified immunity.  The defendants appeal.  We reverse.

     When defendants executed the  arrest warrant for Stephen

Crooker,  they  "possesse[d]  a  reasonable belief  based  on

specific and articulable facts which, taken together with the

rational inferences from those facts,  reasonably warrant[ed]

the   officer[s]  in  believing,"  that  the  Crookers'  home

harbored an  individual, one Vincent Tondryk,  who "pos[ed] a

danger to the officer[s]  or others."  Maryland v.  Buie, 494
                                                        

U.S. 325,  327 (1990) (citations omitted);  see also Michigan
                                                             

                    

1.  The  defendants  deny that,  in  fact,  the mattress  was
lifted from  the box  spring.   That factual  dispute remains
unresolved.   Our  determination  of the  issue of  qualified
immunity  does not depend on resolution of that dispute as we
assume  arguendo that the  mattress search took  place in the
                
manner asserted by the plaintiffs.

                             -2-

v.  Long, 463 U.S. 1032,  1049-50 (1983); Terry  v. Ohio, 392
                                                        

U.S.  1,  21 (1968).    This  reasonable  belief permitted  a

protective sweep of the premises,  i.e., "a quick and limited
                                       

search of premises, incident to [the] arrest and conducted to

protect  the safety of police officers or others."  Buie, 494
                                                        

U.S. at 327; see also United States v. Curzi, 867 F.2d 36, 39
                                            

n.2  (1st  Cir.  1989).    The  defendants,  therefore,  were

justified  in searching  the Crookers'  home for  Tondryk and

looking  in  places where  Tondryk  might  have been  hiding.

Although the district court  so found, it nevertheless denied

the  defendants' claim  of qualified  immunity on  the ground

that the search between  the mattress and box spring  was not

within the  proper confines of a protective  sweep because it

would not  be reasonable to expect  a person to be  hiding in

those environs.  Thus, the court reasoned, the search was not

permissible in the absence of a search warrant.

     It  is  true  that  Buie speaks  of  a  protective sweep
                             

"narrowly confined  to a  cursory visual inspection  of those

places in which a person might be hiding."  Buie, 494 U.S. at
                                                

327.  The facts of  Buie, however, did not present the  issue
                        

of  the permissibility  of  a limited  search for  accessible

weapons (which  it is  not  unreasonable to  expect might  be

hidden   between  a  mattress   and  box   spring)  conducted

simultaneously with the search for a dangerous confederate of

the arrestee.   Thus, we  cannot say, even  today, that  Buie
                                                             

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forecloses the  possibility that  such a scenario  is lawful.

Indeed,  the  Second  Circuit  recently  determined   that  a

protective sweep can include a search for weapons within easy
                    

reach  of an  individual  whom the  officers have  reasonably

concluded is dangerous.  See  United States v. Hernandez, 941
                                                        

F.2d  133,  137 (2d  Cir. 1991);  see  also United  States v.
                                                          

Lopez,  989  F.2d 24  (1st  Cir. 1993)  (upholding  a weapons
     

search  where the police had ample basis for believing that a

dangerous  weapon was  lodged  close by,  that the  defendant

might not be  acting alone,  and that the  premises were  not

secure),  petition for cert. filed, (U.S. Jun. 23, 1993) (No.
                                  

93-5032); cf. United States v. Irizarry, 673 F.2d 554, 559 n*
                                       

(1st Cir.  1982) (suggesting that a search  for weapons would

be unjustified where all  persons in a hotel room  were under

control and  the agents  knew  that no  one else  was on  the

premises).

     In analyzing a claim of qualified immunity, moreover, we

are  concerned  with  clearly established  constitutional  or

statutory  rights of  which a  reasonable officer  would have

known at the time he took action, here, in August 1989.  See,
                                                             

e.g., Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 228
                                          

(1st  Cir.  1992)  (explaining  that "the  touchstone  of  an

inquiry into qualified immunity  is whether the state actor's

behavior was  objectively reasonable, as a  matter of federal

law,   at  the   time  and   under  the   circumstances  then

                             -4-

obtaining"); Amsden v.  Moran, 904  F.2d 748,  751 (1st  Cir.
                             

1990) (similar),  cert. denied,  498 U.S. 1041  (1991).   The
                              

protective  sweep in  Hernandez  occurred, like  the  instant
                               

sweep,  in  1989, and,  significantly,  that  court drew  its

reasoning not only  from Buie, but also from Long and Terry -
                                                           

two opinions of the Court that predated 1989 and dwelt on the

balance  that  must  be  struck  between  the  need  for  law

enforcement officers to protect themselves and others and the

invasion which a search entails.  See Long, 463 U.S. at 1049-
                                          

52;  Terry,  392 U.S.  at 23-27;  see  also United  States v.
                                                          

Elkins, 732  F.2d 1280,  1285 (6th Cir.  1984) ("Once  having
      

entered the premises, the agents were then required to secure
                                                   

all  persons therein and to  make a protective  sweep for the

weapons  Elkins was  known to  favor, for  the safety  of all

concerned.") (Emphasis supplied).

     In sum,  it may  well be that,  during the course  of an

otherwise   justified  protective   sweep  for   a  dangerous

individual,  thought to  be in  hiding, the  Fourth Amendment

permits a simultaneously conducted  limited search of  places

which might contain  a weapon readily accessible to  that as-

yet-undiscovered individual.  We need  not, and do not, reach

that  question  in  this  case, however,  for  the  operative

inquiry on  qualified immunity is not  whether the defendants

actually abridged the  plaintiffs' constitutional rights, but

whether  defendants'  conduct  was objectively  unreasonable,

                             -5-

given the constitutional  understandings then  current.   See
                                                             

Anderson v.  Creighton, 483  U.S. 635, 640  (1987); Davis  v.
                                                         

Scherer, 468 U.S. 183, 190  (1984); Quintero de Quintero, 974
                                                        

F.2d at  228; Amsden, 904 F.2d at  751.  The uncertainty that
                    

shrouds  the  question  here  means,  a  fortiori,  that  the
                                                 

defendants, in  1989, violated no clearly  established Fourth

Amendment right of which reasonable officers would have known

when  they  searched between  the  mattress  and box  spring.

After  all,  a state  actor is  neither  expected to  carry a

crystal  ball nor "to determine the manner in which the law's

grey  areas will be clarified and defined."  Borucki v. Ryan,
                                                            

827 F.2d 836, 838 (1st Cir. 1987).

     Finally, we believe it is important to note that nothing

approaching  a  full scale  search  occurred  in this  case.2

Stephen Crooker acknowledged that  the officers' sweep of the

premises,  including  the basement,  took  only  five to  ten

minutes,  and  that  the  officers spent  only  "a  couple of

minutes" in the bedroom.   Apart from the search  between the

mattress and box spring, nothing in  the record suggests that

the  officers  were  rummaging  aimlessly  about.    This  is

persuasive proof that safety, not  a search for evidence, was

                    

2.  We think  it is useful  to contrast what  transpired here
with the search  conducted in Chimel v.  California, 395 U.S.
                                                   
752  (1969).   That foray  lasted between  45 minutes  and an
hour, id. at 754,  and comprised "a full-blown search  of the
         
entire house for evidence  of the crime for which  the arrest
was made."  Maryland v. Buie, 494 U.S. at 336.
                            

                             -6-

the  impetus for,  and guiding  force behind,  the protective

sweep at  issue here.  The Court has taught that a protective

"sweep  lasts  no longer  than  is  necessary to  dispel  the

reasonable  suspicion of  danger and in  any event  no longer

than  it  takes  to  complete   the  arrest  and  depart  the

premises."  Buie, 494 U.S. at 335-36.  The sweep conducted by
                

the defendants in this case fulfilled these criteria.

     We need go no  further.3  Because the record, read as it

must  be, in the light most flattering to the plaintiffs, see
                                                             

Quintero de Quintero, 974  F.2d at 227-28, shows conclusively
                    

that the  defendants are entitled to  qualified immunity, the

district  court erred  in  denying their  motion for  summary

judgment.

     Reversed.
              

                    

3.  In view of the result that we reach, we need not  address
defendants' asseveration, premised  on cases such  as Griffin
                                                             
v.  Wisconsin,  483  U.S. 868  (1987)  and  United  States v.
                                                          
Cardona,  903 F.2d 60 (1st Cir. 1990), cert. denied, 498 U.S.
                                                   
1049 (1991),  that their  status as parole  officers, coupled
with  Stephen  Crooker's  status  as  a  parolee,  created  a
diminished expectation of privacy and broadened the officers'
entitlement to conduct a warrantless search.

                             -7-