Buonocore v. Harris

• Decision Date: 12 September 1995
• Docket Number: 94-1932,Nos. 94-1901,s. 94-1901
• Parties: Daniel G. BUONOCORE, Plaintiff-Appellee, v. Donald L. HARRIS, Special Agent, Bureau of Alcohol, Tobacco and Firearms, Defendant-Appellant, and David R. Cundiff, Deputy Sheriff, Franklin County Sheriff's Department; Chesapeake and Potomac Telephone Company of Virginia; James D. Thompson, Assistant Manager, Chesapeake and Potomac Telephone Company of Virginia; Linda Sue Taylor; United States of America, Defendants. Daniel G. BUONOCORE, Plaintiff-Appellee, v. David R. CUNDIFF, Deputy Sheriff, Franklin County Sheriff's Department, Defendant-Appellant, and Donald L. Harris, Special Agent, Bureau of Alcohol, Tobacco and Firearms; Chesapeake and Potomac Telephone Company of Virginia; James D. Thompson, Assistant Manager, Chesapeake and Potomac Telephone Company of Virginia; Linda Sue Taylor; United States of America, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 347

65 F.3d 347

32 Fed.R.Serv.3d 327

Daniel G. BUONOCORE, Plaintiff-Appellee, v. Donald L. HARRIS, Special Agent, Bureau of Alcohol, Tobacco and Firearms, Defendant-Appellant, and David R. Cundiff, Deputy Sheriff, Franklin County Sheriff's

Department; Chesapeake and Potomac Telephone Company of

Virginia; James D. Thompson, Assistant Manager, Chesapeake

and Potomac Telephone Company of Virginia; Linda Sue

Taylor; United States of America, Defendants.

Daniel G. BUONOCORE, Plaintiff-Appellee, v. David R. CUNDIFF, Deputy Sheriff, Franklin County Sheriff's

Department, Defendant-Appellant,

and

Donald L. Harris, Special Agent, Bureau of Alcohol, Tobacco

and Firearms; Chesapeake and Potomac Telephone Company of

Virginia; James D. Thompson, Assistant Manager, Chesapeake

and Potomac Telephone Company of Virginia; Linda Sue

Taylor; United States of America, Defendants.

Nos. 94-1901, 94-1932.

United States Court of Appeals, Fourth Circuit.

Argued April 4, 1995.

Decided Sept. 12, 1995.

ARGUED: Valerie Lisabeth Tetro, Joseph F. Cunningham & Associates, Washington, DC, for appellant Harris; Elizabeth Kay Dillon, Woods, Rogers & Hazlegrove, Roanoke, VA, for appellant Cundiff. Terry N. Grimes, King, Fulghum, Snead, Nixon & Grimes, P.C., Roanoke, VA, for appellee. ON BRIEF: Joseph F. Cunningham, Joseph F. Cunningham & Associates, Washington, DC, for appellant Harris; W. Fain Rutherford, Randy V. Cargill, Woods, Rogers & Hazlegrove, Roanoke, VA, for appellant Cundiff.

John T. Boitnott, Rocky Mount, VA, for appellee.

Before HAMILTON, WILLIAMS, and DIANA GRIBBON MOTZ, Circuit Judges.

Dismissed by published opinion. Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge HAMILTON and Judge WILLIAMS joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

In this case a homeowner alleged that two law enforcement officers, after obtaining a warrant to search his home, invited a private person to engage in an independent general search of the home for items never mentioned in the warrant. In the face of these allegations, the officers asserted that qualified immunity entitled them to summary judgment and have now appealed the district court's refusal to so hold. For the reasons set forth within, we dismiss their appeals.

I.

This case arises out of a search of Daniel G. Buonocore's home conducted on November 24, 1992. For over two years prior to that date, Buonocore had lived with Linda Sue Taylor. Apparently following a quarrel with Buonocore, Taylor moved out of Buonocore's home on November 12, 1992, and, on that same day, contacted Deputy David Cundiff of the local sheriff's office. Taylor told Cundiff that she had seen illegal and unregistered firearms in Buonocore's home, including a machine gun that Taylor claimed to have previously fired and a shotgun that she allegedly helped modify by sawing off the barrel. Taylor also reported that Buonocore, then employed by the Chesapeake and Potomac Telephone Company (C & P), had in his possession property belonging to C & P. Upon hearing these charges, Cundiff contacted not only Special Agent Donald L. Harris of the Bureau of Alcohol, Tobacco and Firearms (ATF), so that Harris could obtain a federal search warrant for Buonocore's residence, but also James D. Thompson, a corporate security officer at C & P. Cundiff invited Thompson to attend the search and identify any C & P property that might be discovered.

On the afternoon of November 24, 1992, Harris applied for and received a warrant to search Buonocore's home from the United States District Court for the Western District of Virginia. The warrant only permitted Harris or another "authorized officer" to search Buonocore's house, including the attached garage, for "firearms not registered to him in the National Firearms Registration and Transfer Records." At approximately 8:00 p.m. that evening, Harris, accompanied by Cundiff, Thompson, and other ATF agents and deputy sheriffs, arrived at Buonocore's residence to execute the warrant. Buonocore was home when they arrived. All of these facts are undisputed. What happened next, however, is very much disputed.

Buonocore asserts in his affidavit that C & P employee, Thompson, entered Buonocore's home "as soon as ATF had secured the residence." Buonocore claims he immediately asked Thompson to leave the premises, but that Thompson refused to leave. According to Buonocore, Thompson, independently of Harris or Cundiff or any other officer, searched for telephone equipment in a tool box located on Buonocore's truck and in parts of Buonocore's residence that the law enforcement officers had not searched. Buonocore alleges that he kept the machine gun and sawed off shotgun in a locked gun safe and that as soon as the officers told him they were searching for these weapons, he unlocked the gun safe so that the officers could examine them. Buonocore maintains that he did not steal any items from C & P and that the few items belonging to C & P discovered at his home had been discarded or were being repaired or modified by him. He further claims that "[n]one of the items in [his] residence were visibly and clearly marked as belonging to C & P Telephone Company."

In contrast, Deputy Cundiff in his affidavit asserts he invited C & P employee, Thompson, to "be present at the time of the search" in order to "identify any property belonging to C & P Telephone should such be found during the search for the alleged illegal firearms." According to Cundiff, sometime "during the search of the residence," Cundiff "noticed" a small amount of marijuana, the two weapons identified by Taylor, and "property that appeared to belong to C & P Telephone." Cundiff does not state when the C & P property was discovered or whether it was found before, at the same time, or after the guns were located. Nor does he state where the C & P equipment was found or whether it was located in close proximity to the guns. However, Cundiff does state that after "[h]aving seen property that was visibly and clearly marked as belonging to C & P Telephone Company in the residence[,] Thompson was brought in to the residence to identify the property." ¹

Thompson also filed an affidavit, which provides in its entirety:

1. I am employed by Bell Atlantic--Virginia, Inc. (formerly known as The Chesapeake and Potomac Telephone Company of Virginia) (hereinafter, "C & P") as Assistant Manager, Corporate Security, and I have personal knowledge of the facts contained in this Affidavit.

2. In November of 1992, I held the position of Assistant Manager, Corporate Security for C & P.

3. On November 24, 1992, I entered the home of Daniel Buonocore by invitation of the law enforcement authorities who were executing a federal search warrant. At that time, I observed a number of items of personal property which appeared to belong to C & P. I personally asked Mr. Buonocore where some of the items came from and he replied: "I got them from work."

4. I was present while the law enforcement authorities initiated and conducted a search of Buonocore's pickup truck and tool box.

5. On December 3, 1992, Buonocore returned to C & P a number of items of personal property which I had observed in his residence at the time of the search. This personal property that Buonocure returned to C & P included a blue installer's handset, a large yellow umbrella, a digging bar clearly marked as C & P property and other items including tape, cleaner and gloves.

Thus, Thompson's affidavit does not address his role in the search of or his time of entry into Buonocore's house.

The parties agree that upon inspection of Buonocore's weapons, the law enforcement officers discovered that both firearms were in fact legal in that the "machine gun" identified by Taylor was actually a semi-automatic rifle and the barrel of the sawed-off shotgun was within the legal limit. The only item seized from Buonocore's residence on November 24, 1992, was the marijuana. Buonocore was not charged with any offense as a result of the search, but he was dismissed from his job at C & P on December 3, 1992, for failing to secure "specific authorization" to have C & P property in his possession.

Buonocore filed this action against Harris, Cundiff, Thompson, and C & P, seeking damages for searching his home in violation of the Fourth and Fourteenth Amendments, 42 U.S.C. Sec. 1983, and Virginia trespass law. The complaint also sought damages against Taylor for malicious prosecution. Upon motion by the United States, Harris was dismissed as a party with respect to Buonocore's trespass claim and the United States was substituted in his place under the Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. Sec. 2679(d). Additionally, the district court dismissed Buonocore's malicious prosecution claim against Taylor for ineffective service of process.

On June 6, 1994, the district court granted C & P and Thompson summary judgment on Buonocore's Sec. 1983 claim and dismissed the state law trespass claim without prejudice. The court also dismissed the United States as a party for lack of subject-matter jurisdiction. In addition, the court dismissed the Sec. 1983 claim against Harris and Cundiff because they were acting pursuant to federal, not state, law and granted summary judgment in favor of Cundiff with respect to the state law trespass claim. As to the sole remaining claim--a claim for damages under the Fourth Amendment pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)--the district court refused to grant Harris and Cundiff summary judgment on qualified immunity grounds.

Harris filed a notice of appeal on July 5, 1994. Cundiff, however, did not file his notice of appeal of the district court's June 6, 1994, order until July 20, 1994. No cross-appeal was filed.

II.

Before addressing the question of whether summary judgment was properly denied on the qualified immunity defense, we...