Ayeni v. Mottola

• Decision Date: 12 September 1994
• Docket Number: D,No. 1789,1789
• Citation: 35 F.3d 680
• Parties: , 22 Media L. Rep. 2225 Tawa AYENI, et al., Plaintiffs-Appellees, v. James MOTTOLA, Defendant-Appellant. ockets 94-6041(L), 94-6047.
• Court: U.S. Court of Appeals — Second Circuit

Page 680

35 F.3d 680

63 USLW 2191, 22 Media L. Rep. 2225

Tawa AYENI, et al., Plaintiffs-Appellees, v. James MOTTOLA, Defendant-Appellant.

No. 1789, Dockets 94-6041(L), 94-6047.

United States Court of Appeals, Second Circuit.

Argued April 8, 1994.

Decided Sept. 12, 1994.

Edward R. Cohen, Washington, DC (Frank W. Hunger, Asst. Atty. Gen., Barbara L. Herwig, Asst. Director, Department of Justice, on the brief), for defendant-appellant.

Henry H. Rossbacher, Los Angeles, CA (Tracy W. Young, Nanci E. Nishimura, Karen E. Widess, Rossbacher & Associates, Los Angeles, CA, Harry C. Batchelder, Jr., New York City, on the brief), for plaintiffs-appellees.

Before: NEWMAN, Chief Judge, PIERCE and LEVAL, Circuit Judges.

JON O. NEWMAN, Chief Judge:

The quest of television reporters for on-the-scene coverage of dramatic events and the interest of law enforcement agencies in promoting their own image have combined to present for decision an appeal with important consequences for the right of privacy of those inside a home. The appeal arises because a Secret Service agent has been sued for inviting the crew of a TV news magazine into a private home to videotape a search. The principal issues are whether the agent's conduct in bringing a television crew into a home violates the Fourth Amendment rights of a mother and child within the home, and, if so, whether the agent is nonetheless shielded by qualified immunity from personal liability for damages. These issues arise on an interlocutory appeal by Special Agent James Mottola from the February 10, 1994, order of the District Court for the Eastern District of New York (Jack B. Weinstein, Judge) denying Mottola's motion to dismiss on qualified immunity grounds a suit brought by Tawa Ayeni and her son, Kayode Ayeni. See Ayeni v. CBS, Inc., 848 F.Supp. 362 (E.D.N.Y.1994). We conclude that the complaint alleges clear violations of the constitutional ban on unreasonable searches and seizures and that the agent's claim of qualified immunity was properly rejected. We therefore affirm.

Facts

Plaintiffs' complaint, which we accept as true on this interlocutory appeal, alleges the following circumstances. On March 5, 1992, defendant Mottola received a warrant to search the Ayenis' apartment based upon information obtained from a confidential informant that Babatunde Ayeni was engaging in credit card fraud. Plaintiff Tawa Ayeni is Babatunde Ayeni's wife, and plaintiff Kayode Ayeni is their son. Neither plaintiff was suspected of any participation in the alleged fraudulent scheme. The warrant authorized Mottola and "any Authorized Officer of the United States" to enter the apartment and search for specified evidence of credit card fraud. At 6:00 p.m., Mrs. Ayeni and Kayode were home alone when six agents (four or five Secret Service agents and one or two Postal Service inspectors) arrived without a warrant, pounded on the door, and announced that they were police conducting an investigation. Agent Mottola was not present in this first wave of agents, though he may have been in communication with them by radio. When Mrs. Ayeni, clad in a dressing gown, opened the door slightly, one agent pushed her in the chest to move her away from the door while two others pushed open the door, and the agents entered the apartment.

As several of the agents rushed into the bedroom and began searching inside the closets, Mrs. Ayeni asked to be shown a search warrant. One of the agents informed her that they were waiting for other people to bring the warrant; it is unclear whether the agents then stopped searching the premises. At 7:50 p.m., the agents were notified by radio, possibly by defendant Mottola, that the warrant had just been signed, and the agents commenced an aggressive search. Approximately 25 minutes later, Mottola arrived with the warrant. He was accompanied by three other Secret Service agents, and, particularly pertinent to this appeal, three members of a CBS television crew from the "Street Stories" weekly news magazine program. ¹ The CBS crew operated a video camera and sound recording devices as they followed the agents during the search of the Ayeni home.

Mrs. Ayeni objected to the videotaping of herself and her son. She tried to avoid the camera by covering her face with a magazine. Kayode was crying and told his mother that he was frightened. When Mrs. Ayeni attempted to shield her son's face with a magazine, Mottola grabbed the magazine out of her hand, threw it on the floor, and told the plaintiffs to "shut up." Mottola or one of the other agents directed the camera crew to videotape Mrs. Ayeni's face. Mrs. Ayeni was taped while an agent questioned her to learn where her husband was and how she had paid for several expensive watches that the agent found. The camera crew also videotaped the agents searching the home and the personal effects of the Ayenis, including books, photographs, financial statements, and personal letters. During the search, the agents broke the leg of the plaintiffs' couch and a television stand.

The CBS crew videotaped the search for approximately 20 minutes, and then left the premises with several agents. The remaining agents completed the search and left at approximately 9:35 p.m., more than three hours after the initial entry. The only tangible item seized from the home was a photograph of the Ayeni family. CBS never broadcast any portion of the video footage.

Plaintiffs instituted a Bivens action against Agent Mottola, other agents, and CBS. ² See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Judge Weinstein denied Agent Mottola's motion to dismiss on grounds of qualified immunity, 848 F.Supp. 362, and Mottola brought this interlocutory appeal.

Discussion

Mottola is entitled to judgment as a matter of law if he can demonstrate either that the rights claimed by the plaintiffs to have been violated were not "clearly established" as of the time of the search, or that it was "objectively reasonable" for him to believe that his acts did not violate those clearly established rights. See Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir.1993); Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir.1990).

I. Fourth Amendment Claims

Bearing in mind the standards for dismissing a claim on qualified immunity grounds, we first examine whether clearly established Fourth Amendment law at the time of the search prohibited Mottola's actions in bringing the CBS TV crew into the Ayeni home, and, if so, whether it was objectively reasonable for Mottola to believe that his actions did not violate that clearly established law. Plaintiffs contend that Mottola's conduct exceeded Fourth Amendment limitations in three respects: (a) the Ayenis' privacy was invaded by the presence of unauthorized persons in their home, (b) the conduct of the search was excessively intrusive, and (c) some of the searching occurred before a warrant was issued.

A. Entry by Unauthorized Persons

The contention that protected privacy within the Ayenis' home was violated by the presence of unauthorized persons is based on Fourth Amendment standards, somewhat reenforced by statutory requirements.

1. Fourth Amendment standards. The Fourth Amendment to the Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The text of the Amendment makes clear that all searches must be "reasonable," and this is so even under the limited circumstances in which a warrant may be issued. The reasonableness requirement of the Fourth Amendment applies not only to prevent searches and seizures that would be unreasonable if conducted at all, but also to ensure reasonableness in the manner and scope of searches and seizures that are carried out, whether pursuant to a warrant or under "exigent circumstances." See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989); Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 1699-1700, 85 L.Ed.2d 1 (1985).

The protection of privacy from encroachment by governmental officers is the " 'principal' object of the [Fourth] Amendment." ³ ] The home has properly been regarded as among the most highly protected zones of privacy, ⁴ and "the sanctity of private dwellings [is] ordinarily afforded the most stringent Fourth Amendment protection." ⁵ While incursions into private homes are permitted under certain limited circumstances in order to protect the public's interest in controlling crime, determinations regarding the necessity, location, scope, and conditions of such incursions are generally to be made by disinterested judicial officers, and not by the officers conducting the searches:

The right of officers to thrust themselves into a home is ... a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.

Payton v. New York, 445 U.S. 573, 586 n. 24, 100 S.Ct. 1371, 1380 n. 24, 63 L.Ed.2d 639 (1980) (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948)).

Moreover, since the establishment of the exclusionary rule dating back to 1914 for federal officers, see Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, and to 1961 for state officers, see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, law enforcement personnel have been aware that, if their searches were not conducted in accordance with the requirements of the Fourth Amendment, they would be futile since any evidence...