420 F.3d 689 (7th Cir. 2005), 04-2993, Green v. Butler

Docket Nº:04-2993.
Citation:420 F.3d 689
Party Name:Michael J. GREEN and Cheryl Poulsen, Plaintiffs-Appellants, v. Marlo BUTLER, David Carroll, Mark Salsberry, et al., Defendants-Appellees.
Case Date:August 24, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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420 F.3d 689 (7th Cir. 2005)

Michael J. GREEN and Cheryl Poulsen, Plaintiffs-Appellants,


Marlo BUTLER, David Carroll, Mark Salsberry, et al., Defendants-Appellees.

No. 04-2993.

United States Court of Appeals, Seventh Circuit.

August 24, 2005

Argued May 4, 2005.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 3120 – Charles P. Kocoras, Chief Judge.

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[Copyrighted Material Omitted]

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John R. Wimmer (argued), Downers Grove, IL, for Plaintiffs-Appellants.

Richard S. Huszagh (argued), Office of the Attorney General, Chicago, IL, for Defendants-Appellees.

Before Ripple, Rovner and Wood, Circuit Judges.

Ripple, Circuit Judge.

Michael Green and Cheryl Poulsen rented a room in their residence to a state parolee, Michael Belter. The named Illinois parole agents ("the agents" or "the State") entered the residence to search Belter, prompting Mr. Green and Ms. Poulsen to file this § 1983 action for violations of their rights under the Fourth Amendment. The district court granted summary judgment to the agents, holding that Mr. Green and Ms. Poulsen failed to demonstrate a Fourth Amendment violation and, in the alternative, that the officers enjoyed qualified immunity. Mr. Green and Ms. Poulsen appeal the grant of summary judgment. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand for further proceedings.



A. Facts

In February 2003, Mr. Green owned a home in Warrenville, Illinois, where he resided with his girlfriend, Ms. Poulsen. Mr. Green also rented a room in the house to Belter, "[a] long-time acquaintance" of Mr. Green's. R.29 at 1. Belter had been convicted in state court of criminal sexual assault against a minor. At the time of the search, he was on parole and electronically monitored.

As a condition of his parole, Belter executed a "Host Site Agreement" when he moved into the residence. He identified himself as the host and did not indicate that anyone else lived at the residence.1 As relevant here, the agreement provided: "I [the undersigned] understand that my residence is subject to search at any time by parole agents or designated Illinois Department of Corrections' [sic] staff and I explicitly consent thereto." R.26, Ex.16. Mr. Green knew that Belter was on parole, but neither he nor Ms. Poulsen knew about the Host Site Agreement or its conditions. There is some evidence that Belter's parole

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agent, Richard Guise, knew that Belter lived with Mr. Green; according to Belter, Guise told him to execute the agreement in the way that he did because it was merely a "technicality." R.28 at 12. When Guise retired, Belter's file was transferred first to parole agent Jeffrey Bryant. Bryant apparently knew that Belter lived with Mr. Green because at one point Belter asked Bryant to stop calling him at the residence telephone number because the calls had caused problems with his host. After a short period, Belter's file again was transferred to parole agent Marlo Butler, who repeatedly received computer status updates indicating that Belter lived alone.

On February 23, 2003, Butler and Bryant made a routine visit to Belter's residence. Belter answered the door, quickly stepped outside and shut the door behind him. The agents asked to enter the residence, but Belter refused to let them. Belter informed the agents that he was renting a room, that the owner, Mr. Green, was not at home but would return soon and that Mr. Green would not want them to come inside. The agents asked Belter to inform Mr. Green that they would return later that afternoon and left without entering the residence.

Butler then called fellow parole agent Mark Salsberry. Later that day, Salsberry, together with agents David Carroll and Amy Freund, were briefed by Butler and Bryant at a nearby restaurant parking lot. They met for up to fifteen minutes, during which time the agents checked the department computer files, which still indicated that Belter lived alone. The agents agreed that they should return to the residence, determine why Belter had refused them entry and explain the parole conditions to him. Bryant's entry in the computer system confirmed that purpose: " AGTS CAME BY A SECOND TIME TO GO OVER WITH HOST H/S [Host Site] AGREEMENT AND PROGRAM RULES." R.28 at 22. There is no indication that the agents believed that they, or anyone else in the home, were in danger or that the home contained evidence of a crime.

Meanwhile, Mr. Green and Ms. Poulsen had returned to the residence. Belter told his host of the parole agents' visit and informed him that they would return. Mr. Green went out to the garage while Ms. Poulsen and Belter remained in the house. When the agents returned, the garage door was open, and they saw Mr. Green. Carroll and Butler entered the garage. According to Mr. Green, "David Carroll said 'Where is Mike Belter?' as he was going through the garage, and I said 'He's in the house.' He brushed me aside with his arm and stated 'This is what you get for not cooperating.'" R.26, Ex.2 at 51. The two agents exited the garage through a side door and, together with Salsberry and Freund (Bryant remained near the street), opened and entered through the unlocked front door of the residence, with Mr. Green following. The parties dispute whether the agents first knocked and announced their presence before entering, and it is not clear whether Belter saw them approach or whether the agents or a house occupant opened the door.2 According to Ms. Poulsen, the first agent to enter

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told her to keep her dog away or he would shoot it.3 The agents then handcuffed Belter.

Mr. Green followed the agents into the house. He testified that he did not know who they were, and that he asked repeatedly "Who are you people?" R.26, Ex.2 at 62. Eventually, according to Mr. Green, Carroll responded: "Here's my badge, here's my ID and here's my gun. Get out of my way." R.26, Ex.2 at 63. Salsberry took Belter to his bedroom while Mr. Green and Carroll argued about whether the former had signed a host site agreement. The other agents looked around the rest of the residence. Accounts vary as to how long the incident lasted, from thirteen minutes to an hour, but at the conclusion Belter was released, Mr. Green signed a host site agreement and Butler apologized for the incident.

B. District Court Proceedings

Mr. Green and Ms. Poulsen brought this § 1983 action against the parole agents for violating their rights under the Fourth Amendment to the Constitution of the United States, because the agents entered without a warrant and unreasonably failed to comply with the "knock and announce" rule. The agents moved for summary judgment.

The district court granted the agents' motion and entered judgment in their favor. In doing so, the court rejected the plaintiffs' argument on the merits. It determined that, even if the agents had failed to knock and announce their presence before entering, the knock and announce rule is but one factor to consider in assessing whether an entry and search is unreasonable under the Fourth Amendment. Accordingly, the district court analyzed the totality of circumstances, balancing the degree of privacy invasion with the State of Illinois' promotion of its legitimate interests. The court found the invasion of privacy to be minimal. It noted that Mr. Green and Ms. Poulsen had a decreased expectation of privacy because they knew that their housemate Belter was a parolee, a fact reducing both their subjective expectations of privacy and the objective expectations of society. Moreover, the court looked to the level of intrusiveness inherent in the search itself. It determined that the parole agents confined themselves to searching common areas of the home and that there was no evidence that the search was a veiled attempt to circumvent warrant requirements. On the other hand, the district court found Illinois' interest to be compelling. The district court

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found a particular interest in maintaining public safety because parole exposes a known offender to the public before he has served fully his sentence and because recidivism rates are high. Illinois' interests were at their height, according to the district court, as a reaction to Belter's suspicious behavior when the agents arrived the first time. On balance, then, the district court found that the search comported with the Fourth Amendment despite the agents' failure to knock and announce.

In the alternative, the district court held that the agents enjoyed qualified immunity from suit. Even assuming that Mr. Green and Ms. Poulsen established a Fourth Amendment violation, the district court found that they could not satisfy the second prong of the qualified immunity analysis because "the unusual factual circumstances of this case make the contours of Green and Poulsen's rights in this situation fuzzy enough that it would not be clear to a reasonable agent in the same setting that the course of conduct the agents undertook was unlawful." R.29 at 10-11.



A. Standard of Review and Legal Standards

Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving parties, Mr. Green and Ms. Poulsen. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chortek v. City of Milwaukee, 356 F.3d 740, 745 (7th Cir. 2004).

The Constitution of the United States guarantees that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and...

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