378 F.3d 1201 (11th Cir. 2004), 03-10795, O'Rourke v. Hayes

Docket Nº:03-10795.
Citation:378 F.3d 1201
Party Name:Guirlaine O'ROURKE, Plaintiff-Appellee, v. Christopher HAYES, individually, Defendant-Appellant,
Case Date:July 27, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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378 F.3d 1201 (11th Cir. 2004)

Guirlaine O'ROURKE, Plaintiff-Appellee,


Christopher HAYES, individually, Defendant-Appellant,

No. 03-10795.

United States Court of Appeals, Eleventh Circuit

July 27, 2004

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[Copyrighted Material Omitted]

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Charles T. Whitelock, Christopher J. Whitelock, Whitelock & Associates, P.A.,

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Fort Lauderdale, FL, for Defendant-Appellant.

Hugh L. Koerner, Fort Lauderdale, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and MARCUS, Circuit Judges, and MUSGRAVE [*], Judge.

TJOFLAT, Circuit Judge:


Plaintiff Guirlaine O'Rourke was the office manager for her husband's medical office. Sylvester Brown was a probationer who sometimes performed "odd jobs" for her; he had listed O'Rourke's office with his probation officer as a place of employment. In late 1997, Brown informed O'Rourke that he was trying to get in touch with Christopher Hayes, his probation officer, but they kept missing each other.

On December 3, 1997, Hayes called O'Rourke to inquire about Brown's whereabouts. O'Rourke told Hayes that Brown would be visiting the office at 2:00 P.M. that day to wash her husband's car. Hayes never mentioned to O'Rourke that Brown had violated his probation, and did not ask her to keep his phone call a secret.

Later that morning, Brown came by the office to pick up some cleaning supplies and O'Rourke mentioned that Hayes was looking for him. Brown subsequently left. Around noon, while the office was not yet open to patients, Hayes and several police officers knocked on the door. When O'Rourke opened it, Hayes identified himself. O'Rourke remarked that she had told Brown that Hayes was looking for him; Hayes replied, "You shouldn't have told him that." As she and Hayes were talking, one of the other officers asked to enter the office; she declined, stating, "No, I told you, he's not here.... I'm in the middle of eating lunch. I'm getting ready for office hours. You can't come in." The officers then asked her a series of questions about Brown's whereabouts and whether she was hiding him inside. She again informed them that Brown was coming back at 2:00 p.m., to wash the car, but they refused to believe her. At least one of the officers became sarcastic and abusive, repeatedly declaring--despite the fact that O'Rourke was a married woman--that Brown was probably her boyfriend and she was hiding him. There is no evidence anywhere in the record that O'Rourke was rude to any of the officers at any time, notwithstanding their provocations.

When the officers continued to insist upon entering, O'Rourke closed and locked the door. She dialed 911 and requested that someone tell the officers to leave. The police dispatcher told her that there was no one at the police station who could help her and directed her to open the door to admit the officers. Throughout the phone call, the police continued to pound on the door; Hayes himself testified, "I thought the police were--they were going to knock the door down. I mean, she wasn't letting us in." Finally, O'Rourke relented and unlocked the door. The officers, including Hayes, entered and began to "look[] around" various rooms throughout the entire office. 1 Hayes "held a piece of paper inches from plaintiff's face" that was apparently an arrest warrant for Sylvester Brown. One of the officers, Cathlene Fromm, placed O'Rourke under arrest

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for attempting to withhold consent for the officers' unauthorized entry. Fromm originally claimed that O'Rourke was being arrested for resisting arrest, but later changed the charge to obstruction of justice, which a county court judge dismissed.

O'Rourke filed this suit against Hayes and the police officers who accompanied him in their individual capacities, the City of Fort Lauderdale (which employed the officers), and the Secretary of the Department of Corrections (who employed Hayes) in his official capacity. She brought claims under 42 U.S.C. § 1983, alleging that her Fourth Amendment right to be free of unreasonable searches was violated. She also asserted pendent state law false arrest, invasion of privacy, and trespass claims against the defendants, and a malicious prosecution claim against Fromm. Hayes moved for summary judgment on the basis of qualified immunity, but the district court denied it. Hayes then took this interlocutory appeal under the collateral order doctrine, 2 and we now affirm.


Government officials sued for acts committed in the course of their official duties may invoke the defense of qualified immunity. To be even potentially eligible for qualified immunity, the official has the burden of establishing that he was acting "within the scope of his discretionary authority." Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir. 1995). A defendant unable to meet this burden may not receive summary judgment on qualified immunity grounds. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) ("If the defendant was not acting within his discretionary authority, he is ineligible for the benefit of qualified immunity."). In making this determination,

[i]nstead of focusing on whether the acts in question involved the exercise of actual discretion, we assess whether they are of a type that fell within the employee's job responsibilities. Our inquiry is two-fold. We ask whether the government employee was (a) performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were within his power to utilize.... In applying each prong of this test, we look to the general nature of the defendant's action, temporarily putting aside the fact that it may have been committed for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent, or under constitutionally inappropriate circumstances.

Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004).

Thus, in determining "whether a police officer may assert qualified immunity against a Fourth Amendment claim, we do not ask whether he has the right to engage in unconstitutional searches and seizures, but whether engaging in searches and seizures in general is a part of his job-related powers and responsibilities." Id. at 1266. In the instant case, Hayes was clearly exercising a legitimate job-related function; it is well within a probation officer's duties to assist in the location and apprehension of individuals suspected of violating their probation. Similarly, traveling to and searching a place where a

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suspected probation violator is believed to be is a legitimate means of pursuing that job-related goal. The fact that he may have conducted his investigation in an unconstitutional manner does not undermine that fact.

Once a government official demonstrates that he is potentially entitled to qualified immunity, the burden shifts to the plaintiff to demonstrate that the official is not actually entitled to it. Id. at 1266. The plaintiff must show that the defendant violated a constitutional right, and that the right was clearly established at the time of the alleged violation. Id. at 1266. When qualified immunity is asserted in the context of a motion to dismiss, we look to the pleadings to see if the plaintiff has successfully alleged the violation of a clearly established right. See Snider v. Jefferson State Cmty. Coll., 344 F.3d 1325, 1327 (11th Cir. 2003). When, as here, qualified immunity is asserted in the context of a motion for summary judgment, we look at the evidence in the record, interpreted in the light most favorable to the plaintiff. Based on this evidence, we must determine if there is a reasonable dispute of material fact over whether the defendant violated the plaintiff's clearly established constitutional rights. See Dahl v. Holley, 312 F.3d 1228, 1233 (11th Cir. 2002).

The evidence, interpreted in the light most favorable to O'Rourke, is sufficient for a jury to conclude that her Fourth Amendment rights were violated. "Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed," United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972), its protection extends to any area in which an individual has a reasonable expectation of privacy. See Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 472, 142 L.Ed.2d 373 (1998) ("[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable...."). Offices and other workplaces are among the areas in which individuals may enjoy such a reasonable expectation of privacy. See O'Connor v. Ortega, 480 U.S. 709, 716, 107 S.Ct. 1492, 1497, 94 L.Ed.2d 714 (1987) ("Within the workplace context, this Court has recognized that employees may have a reasonable expectation of privacy against intrusions by police."); See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967) ("The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property."); see also Oliver v. United States, 466 U.S. 170, 178 n. 8, 104 S.Ct. 1735, 1741 n. 8, 80 L.Ed.2d 214 (1984) (mentioning "[t]he Fourth Amendment's protection of offices and commercial buildings").

Absent exigent circumstances, police must have a search warrant to enter any area in a place of business that is off-limits to the general public. As the Supreme Court held in the seminal case of Marshall v. Barlow's, Inc., "What is observable by the public is observable, without a warrant, by the Government...

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