Rowe v. Lamb, 96-1879

Citation130 F.3d 812
Decision Date15 January 1998
Docket NumberNo. 96-1879,96-1879
PartiesAnthony J. ROWE, Appellee, v. Brian LAMB, Jail Supervisor; Brian Ellinger, Jailer, Appellants, Mike Carlson, in their individual and official capacities: Chuck Carson, Lt.; Chris Chernock, Sgt.; County of Dakota, Nebraska, Defendants.
CourtU.S. Court of Appeals — Eighth Circuit

Kimberly K. Sturzenegger, Lincoln, NE, argued (Richard L. Boucher, on the brief), for Appellant.

Debra Rectenbaugh Pettit, Des Moines, IA, argued (Beverly Evans Grenier, on the brief), for Appellee.

Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

BEAM, Circuit Judge.

Brian Lamb and Brian Ellinger appeal the district court's denial of their motions for summary judgment based on qualified immunity in this 42 U.S.C. § 1983 action brought by a probationer. We reverse.

I. BACKGROUND

Anthony Rowe entered a plea of guilty to various offenses. 1 He was placed on probation. One condition of his probation was that he "submit to a search of his person or property at any time, by any Probation Officer or law enforcement officer, with or without probable cause, for controlled substances or contraband." 2 Appendix at 99. While on probation, he was arrested in South Sioux City, Nebraska, for violating his parole for an Iowa burglary conviction.

Dakota County Jail Supervisor Brian Lamb and Dakota County Corrections Officer Brian Ellinger searched Rowe incident to his admission to the jail and found a small quantity of drugs and the keys to Rowe's apartment. Jail regulations required that personal possessions be inventoried and stored and that only individuals with legal authority be allowed access to the property. Rowe's probation officer, Mike Carlson, who had been present at the search, asked for Rowe's consent to search the apartment, but Rowe refused. After showing the jailers a copy of Rowe's probation order, Carlson requested the keys from Ellinger, who gave them to him. Ellinger's supervisor, Lamb, was also present and had no objection. Carlson later searched the apartment.

Rowe filed this action in district court alleging, among other things, that Lamb and Ellinger violated his Fourth Amendment right to be free from unreasonable searches and seizures by providing the keys to Carlson to enable him to search Rowe's residence. Lamb and Ellinger filed a motion for summary judgment based on qualified immunity. The district court denied the motion, finding a genuine issue of material fact on the question of whether Rowe's right to be free from an unreasonable search was clearly established at the time of the alleged violation. Rowe v. Carson, No. 4:CV95-3033, Mem. and Order, slip op. at 5 (D.Neb. Feb. 23, 1997).

II. DISCUSSION

In an appeal from the denial of a motion for summary judgment based on qualified immunity, we review the legal issue of the existence of qualified immunity de novo. See Sisneros v. Nix, 95 F.3d 749, 753 (8th Cir.1996). In order to determine whether a defendant is entitled to qualified immunity, we engage in a two-part analysis. See Manzano v. South Dakota Dep't of Social Servs., 60 F.3d 505, 509 (8th Cir.1995). The first question is whether the plaintiff has alleged a constitutional violation. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). It is not until we have made that required determination that we may analyze whether such right was clearly established at the time of the alleged violation. Thomas v. Hungerford, 23 F.3d 1450, 1452 (8th Cir.1994). Thus, our first consideration is whether Rowe has alleged a violation of any constitutional right at all.

Probation, like incarceration, is a form of criminal sanction imposed by a court on an offender after a guilty verdict or plea. See Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 3168-69, 97 L.Ed.2d 709 (1987). Probationers do not enjoy the absolute liberty to which every citizen is entitled, but only conditional liberty properly dependent on observance of special probation restrictions. See id. With probationers, there is a heightened need for close supervision of the convicted person's activities to protect society and the probationer himself. See United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir.1993). In particular, "in cases involving drugs, authorities supervising the convict 'must be able to act upon a lesser degree of certainty that the Fourth Amendment would otherwise require in order to intervene before [the person] does damage to himself or society.' " Id. at 1203 (quoting Griffin, 483 U.S. at 879, 107 S.Ct. at 3171). Thus, a probationer can be subject to a warrantless search under a statutory scheme or pursuant to the findings of a sentencing court. See United States v. Schoenrock, 868 F.2d 289, 292-93 (8th Cir.1989).

Although the permissible degree of impingement is not unlimited, probation search schemes similar to that at issue here have been upheld as reasonable. See, e.g., Griffin, ...

To continue reading

Request your trial
10 cases
  • Wisconsin ex rel. Toliver v. McCaughtry
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • November 9, 1999
  • Gatlin ex rel. Gatlin v. Green, 02-CV-154JMR/SRN.
    • United States
    • U.S. District Court — District of Minnesota
    • September 26, 2002
    ...1. Constitutional Injury A plaintiff must allege a constitutional injury in order to maintain a federal claim. See Rowe v. Lamb, 130 F.3d 812, 814 (8th Cir.1997). Plaintiff complains of deprivation of equal protection and due a. Equal Protection Count Seven of the complaint alleges deprivat......
  • Moreno v. Baca
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 7, 2005
    ...seizure.4 Random searches not premised on individualized suspicion are not contemplated by the parole conditions.5 Cf. Rowe v. Lamb, 130 F.3d 812, 814 (8th Cir.1997) (holding that a warrantless search of a probationer's home was reasonable where the probationer agreed as a term of his proba......
  • Gorman v. Bartch
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 20, 1998
    ...not violate clearly established rights under the statutes. 8 We review de novo the decision granting qualified immunity. Rowe v. Lamb, 130 F.3d 812, 814 (8th Cir.1997). Claims against government actors in their individual capacities differ from those in their official capacities as to the t......
  • Request a trial to view additional results
2 books & journal articles
  • Anti-prostitution zones: justifications for abolition.
    • United States
    • Journal of Criminal Law and Criminology Vol. 91 No. 4, June 2001
    • June 22, 2001
    ...supra note 15 (arguing that the practice of probation in America grew out of a quest to rehabilitate offenders). (71) See Rowe v. Lamb, 130 F.3d 812 (8th Cir. 1997), reh'g denied, 1998 U.S. App. LEXIS 713 (72) See United States v. Chapel, 428 F. 2d 472, 474 (9th Cir. 1970) (explaining that ......
  • Computer search and seizure issues in Internet crimes against children cases.
    • United States
    • Rutgers Computer & Technology Law Journal Vol. 30 No. 2, June 2004
    • June 22, 2004
    ...State v. Misiorski, 738 A.2d 595,599-600 (Conn. 1999). (205.) Riley v. Commwealth, 120 S.W.3d 622, 627 (Ky. 2003). (206.) Rowe v. Lamb, 130 F.3d 812, 814 (8th Cir. (207.) 534 U.S. 112, 122 (2001). (208.) Id. at 116. (209.) United States v. Oakes, No. Crim. 00-76-P-C, 2001 WL 30530, at *5 (D......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT