Abdella v. O'Toole
| Decision Date | 29 October 2004 |
| Docket Number | No. 3:01CV1686 (DJS).,3:01CV1686 (DJS). |
| Citation | 343 F.Supp.2d 129 |
| Parties | James D. ABDELLA, Jr., Individually and as the parent and next friend of his daughter, Regina Abdella and Rosemary Abdella, Plaintiff v. Christopher P. O'TOOLE, Carl E. Rosa, Robert F. Bette and Joseph Froehlich, Defendants. |
| Court | U.S. District Court — District of Connecticut |
John R. Williams, Williams & Pattis, New Haven, CT, for Plaintiff.
Thomas R. Gerarde, Daniel C. Demerchant, Howd & Ludorf, Robert Bishop Fiske, III, Hartford, CT, for Defendants.
James Abdella, Jr. ("James") and his wife Rosemary Abdella ("Rosemary") bring this action, as individuals and on behalf of their daughter Regina Abdella ("Regina"), for compensatory and punitive damages arising out of an allegedly unconstitutional entry and search of the Abdella home on July 18, 2001. Defendants Christopher O'Toole ("O'Toole") and Robert Bette ("Bette") are police officers employed by the town of Southbury, Connecticut. Defendant Joseph Froehlich ("Froehlich") is a sergeant with the Connecticut State Police serving as the resident state trooper for Southbury. Froehlich was the direct supervisor of O'Toole and Bette during the course of events underlying this suit. O'Toole and Bette have motioned for summary judgment on the grounds that there is no constitutional violation and, regardless, that they are entitled to qualified immunity. Sergeant Froehlich has motioned for summary judgment on the same grounds. The court, for the following reasons, GRANTS in part Froehlich's motion for summary judgment [doc. # 42]. O'Toole's and Bette's motion [doc. # 38] is also GRANTED in part.
Certain general facts in this case are not disputed. On July 18, 2001, Officer Christopher O'Toole responded to a report that young men had stolen some cases of beer from a Budweiser delivery truck. State Trooper Joseph Froehlich also investigated the alleged crime. O'Toole's search for the alleged thieves led him to a vehicle operated by Thomas Boiano. He learned from Boiano that James Abdella ("Jim"), son of the plaintiff, had been a passenger in the vehicle and that Boiano had recently dropped Jim off at the Abdella residence, 198 South Britain Road, Southbury. O'Toole proceeded to the Abdella residence, searching for Jim. O'Toole did not have a search warrant, and this was a fact known to all defendants throughout these events.
O'Toole arrived at the Abdella home alone, went to a door and knocked. Regina, the eleven-year old daughter of James and Rosemary, answered the door. Officer O'Toole observed that Regina was approximately 10 years of age and asked her if her parents were at home. She answered no. Officer Bette and other officers then began to arrive at the home. At this point, the parties' accounts diverge significantly.
All parties admit that Officer O'Toole asked Regina if Jim was at home. According to defendants, Regina responded that Jim was around. Plaintiffs contend that Regina told the officers that he was not in the house. O'Toole states that he asked Regina for permission to enter the home and she said yes. O'Toole then entered the home, accompanied by Froehlich and Bette.
There is a factual dispute about which defendants were present when O'Toole entered the Abdella home. O'Toole testifies that Froehlich was with him when he asked Regina if he could enter, and that Froehlich entered with him. Froehlich contends that he entered only when he saw O'Toole and Bette standing in the house talking to Regina, and O'Toole "waived him inside." Bette states in his affidavit that he was instructed by Froehlich to search the exterior of the house, and that he entered the home via the kitchen when he had completed his assignment. It is not clear from defendants' facts if Bette entered the home with O'Toole and Froehlich.
Froehlich instructed Bette to search outside for Jim. O'Toole and Froehlich stayed with Regina during Bette's search. Bette entered the kitchen, where O'Toole was then standing with Regina. Bette and O'Toole asked Regina if there was an adult or older sibling she could call, and she called her sixteen-year old sister, Leandra. Officer Bette spoke to Leandra via phone. Froehlich asked Regina if she was certain her brother was not home, since she had said he was "just there" before the police arrived. O'Toole then asked Regina's permission to search the second floor for Jim. Regina responded "I don't care." Froehlich and O'Toole conducted a quick search of the second floor, but did not find Jim. Froehlich admits that some closets were opened in the search, but O'Toole makes no mention of similar actions. The police left the residence shortly after Leandra arrived. Regina stayed with her sister.
Plaintiffs paint a quite different picture. Officer O'Toole, after hearing that Jim was not at home, asked Regina to look for her brother. She first searched the second floor of the home and then returned to tell O'Toole that she had not found Jim. O'Toole then asked her to search the garage attached to the house. While Regina was searching the garage, O'Toole entered the Abdella home and stood near the door. Upon Regina's return, O'Toole moved further into the home and stood with Regina while Bette entered behind him. Regina did not see Froehlich enter the home. Regina, surrounded by three police officers, told O'Toole she didn't care if he looked around the house. O'Toole and Froehlich then undertook to thoroughly search the entire house. Drawers, closets and closed rooms were entered, searched and left in disarray. Officer Bette did help Regina call her sister, and police did leave when Leandra arrived. No beer was found and Jim was not discovered in the residence.
The Abdella family further claims that, after the event, they suffered emotional trauma and social ostracization. Rosemary alleges that she is suspicious, defensive and distraught and that she no longer feels safe within her home. Regina testified that as a result of this incident she has lost her faith and trust in the police, a fact the defendants admit. Plaintiffs do not claim that any member of the Abdella family was physically injured as a result of the defendants' actions.
The pending motions for summary judgment raise essentially identical issues. O'Toole and Bette have filed their motion jointly and they will be treated accordingly. Once the merits of O'Toole's and Bette's motion have been addressed, the merits of Froehlich's arguments will be considered. Qualified immunity will be discussed in the final section, first as it applies to O'Toole and Bette and then as it applies to Froehlich.
A motion for summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
Summary judgment is appropriate if, after discovery, the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "The burden is on the moving party `to demonstrate the absence of any material factual issue genuinely in dispute.'" American Int'l Group, Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir.1981) (quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir.1975)).
A dispute concerning a material fact is genuine "`if evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court must view all inferences and ambiguities in a light most favorable to the nonmoving party. See Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Id.
Defendants, Officer O'Toole and Officer Bette, claim that they received consent from Regina, both to enter the Abdella home and to search the home once the officers had gained entry. The consent, defendants argue, validates their warrantless search.
A warrantless search is per se unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Koch v. Town of Brattleboro, 287 F.3d 162, 166 (2d Cir.2002). There are limited exceptions to this rule. A warrantless search may be justified on the grounds of "hot pursuit," or as an incident to an arrest or where an individual consents to the search. Katz, 389 U.S. at 358, 88 S.Ct. 507. Only consent is at issue in the present action.
Two separate search and seizure questions are raised. First, defendants contend that they had consent to enter the Abdella home. Second, they argue that Regina gave them consent to search the second floor of the Abdella home. There is a direct and obvious issue of fact regarding Regina's alleged consent to enter the Abdella home. Regina testifies that she was not asked for, and did not give, her consent but rather that Officer O'Toole entered the Abdella home of his own accord and without permission. The court cannot grant summary judgment to the defendant on the question of unlawful entry.
The search of the second floor of the Abdella home was arguably undertaken with consent. There is no dispute of fact regarding either O'Toole's request for permission or Regina's response. It is also undisputed that Regina was not the owner of the property searched by police. The court, therefore, must address the issues of third-party authority to consent and voluntariness as they relate to the search...
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