Creamer v. Porter

• Decision Date: 15 March 1985
• Docket Number: No. 84-4145,84-4145
• Parties: Robert N. CREAMER, Plaintiff-Appellant, Cross-Appellee, v. Officer Lewis PORTER, Officer J.L. Sampson and Officer R. Johnson, Defendants-Appellees, Cross-Appellants, Deputy David Austin, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1311

754 F.2d 1311

Robert N. CREAMER, Plaintiff-Appellant, Cross-Appellee, v. Officer Lewis PORTER, Officer J.L. Sampson and Officer R.

Johnson, Defendants-Appellees, Cross-Appellants,

Deputy David Austin, et al., Defendants-Appellees.

No. 84-4145.

United States Court of Appeals, Fifth Circuit.

March 15, 1985.

Wellborn Jack, Jr., Rebecca L. Hudsmith, Shreveport, La., for plaintiff-appellant, cross-appellee.

Cook, Yancey, King & Galloway, Edwin L. Blewer, Jr., Charles B. Peatross, City Atty., L. Edwin Greer, Shreveport, La., for defendants-appellees.

Appeals from the United States District Court for the Western District of Louisiana.

Before BROWN, WILLIAMS and GARWOOD, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

This is a Sec. 1983 civil rights action in which plaintiff recovered damages against police officers. The officers, pursuant to a search warrant authorizing the seizure of two stolen television sets, continued searching the plaintiff's business premises and residence for nearly three hours after the two televisions had been seized. Compensatory damages were assessed jointly and severally against three officers, punitive damages were assessed against the officer who supervised the search. Two other defendants, deputies from the parish where the search was being conducted and whose presence at the search was required for jurisdictional purposes, were dismissed. Plaintiff appeals on the issue of punitive damages and the dismissal of two defendants, and the other defendants cross-appeal. We reverse as to the dismissal of Deputy Bruce, and hold him liable jointly and severally with the other officers against whom actual damages have been assessed. In all other respects, we affirm.

I.

Appellant Robert Creamer owns and operates Creamer's Used Furniture and Equipment Company, a business establishment which engages in the sale of used merchandise, including appliances, furniture, tools, and television sets. Creamer purchases his merchandise from individuals as well as from other merchants. Creamer's Used Furniture is one of the three structures located on Creamer's premises. The store faces the highway. Behind the store is a shed in which merchandise is stored. Behind the shed is a two-story duplex, occupied in the upstairs apartment by Mr. Creamer and his wife and in the downstairs apartment by his sister, Virginia Dale, and her children.

On January 28, 1983, Henry Johnson, a resident of Shreveport, was walking past Creamer's Used Furniture when he noticed in the front window a television set that had been stolen from his residence several months earlier. He entered the shop and located a second television set that had also been taken during the November burglary of his home. Johnson contacted the police, and Officer Porter of the Shreveport Police Department procured a search warrant to authorize the seizure of the two television sets. On January 29, a valid warrant was issued to Porter authorizing the search of "premises located at Creamer's Used Furniture and Equipment Company on Blanchard Road, Blanchard, Caddo Parish, Louisiana, and any adjoining buildings" for the two television sets. The warrant described the sets by size, color and serial number. No other property was listed on the warrant.

At approximately 5:30 p.m. that same day Mr. Creamer left his residence for Hewitt, Texas where he was driving to pick up his wife who had been visiting there. Before leaving, he locked his apartment, the entrance to his business, and the gate of the fence surrounding the premises, and released two watch dogs in the area. Between 6:00 and 6:30 p.m., Officer Porter arrived at Creamer's with Officer Sampson. Because Creamer's establishment was outside the city limits of Shreveport and the jurisdiction of the Shreveport Police Department, arrangements had been made for two deputies from the Caddo Parish Sheriff Department to be present for the search. Deputies Bruce and Austin joined the waiting Shreveport officers to commence the search. Porter then radioed police headquarters to place a telephone call to the Creamer residence. Creamer's sister, Ms. Dale, answered the call and was told that the police were there to search the premises pursuant to a search warrant. She came down to the front gate where she was instructed by Officer Porter to "take care of the dogs before I do". After Ms. Dale had secured the dogs, Porter instructed her to let them onto the premises because "they were going to get in one way or another". Ms. Dale unlocked the store and the officers entered.

After the entry to the store, the first television set was seized immediately from the display window. Officer Sampson located and seized the second set ten or fifteen minutes later on a workbench in the back of the store. The sets were placed on a counter in the front of the store, but the officers continued to search the premises. Officer Porter questioned Ms. Dale about several items that were listed as stolen on the report of Henry Johnson's residence. When they had completely searched through the store, Porter ordered Ms. Dale to unlock the glass door leading to Mr. Creamer's office located within the store area. ¹ Once inside the office area, Officers Porter and Sampson opened file drawers, and Creamer's personal safe and desk. Four weapons, some power tools and tool boxes, and the safe were seized from the office. At this point, Officer Porter placed a call to his supervisor to request additional help in conducting the search. Officer Johnson was dispatched to the scene, and the search continued. ² Ms. Dale placed a call to Hewitt, and left a message for Creamer to call her as soon as he reached his destination.

Creamer eventually returned the call and spoke to Officer Porter. Porter did not reveal to Creamer the purpose of the warrant, i.e., that it had been issued for the limited purpose of searching for two television sets, but rather conveyed to Creamer that he had a valid warrant to search his house and that that was what he intended to do. After the call, Creamer left immediately to return home, arriving at approximately four in the morning.

At some point during the search of the store area, Deputy Austin left to answer another call. The remaining three officers and Deputy Bruce completed the search of the store and office and then entered Creamer's apartment. The Shreveport officers thoroughly searched the apartment, while Deputy Bruce recorded serial numbers from seventeen guns that were seized in the apartment. Finally, the officers entered Ms. Dale's apartment and demanded to see receipts for certain items, which she was able to produce. At approximately 10:00 p.m., after nearly three and one-half hours of searching the premises, the officers ended their search, and removed from the premises twenty-nine items. The search had continued for almost three hours after they had seized the two television sets, the only items described in the warrant.

All of the twenty-nine items removed from the premises were kept by the police for nearly three weeks. On February 18, Creamer and his attorney went to the police station and were given all of the property back except for the two television sets described in the warrant, and a power tool which had been checked out as a stolen item. Porter at that time explained to Creamer that he had wanted to keep the weapons in police possession in order to run serial numbers through a computer to determine if they had been stolen.

Creamer brought a civil rights suit for damages under 42 U.S.C. Sec. 1983, seeking compensatory and punitive damages against the three officers of the Shreveport Police Department and the two deputies of the Caddo Parish Sheriff's Department who conducted the search. ³ Plaintiff alleged that the search conducted by defendants had been unlawful and unreasonable, in violation of his Fourth Amendment rights. After a nonjury trial, the court delivered oral findings of fact and conclusions of law. Creamer was awarded compensatory damages in the amount of $6,000 against Officers Porter, Sampson, and Johnson, the three Shreveport defendants. Plaintiff was also awarded punitive damages against Porter in the amount of $1,000. Claims against the two Caddo Parish deputies, Austin and Bruce, were dismissed.

Plaintiff now appeals from the portion of the judgment dismissing his claims against Deputies Austin and Bruce, and the portion of the judgment limiting punitive damages against Officer Porter to $1,000 and denying them against Sampson and Johnson. Officer Porter cross-appealed on grounds that the award of punitive damages against him was inappropriate, and Officers Porter, Sampson, and Johnson appealed the district court's denial of their qualified immunity defense.

II.

We first consider the district court's dismissal of Deputies Bruce and Austin. The court characterized them as "really no more than bystanders who had little active participation in the search ... they were hardly more than a jurisdictional formality". We agree with this conclusion insofar as Deputy Austin is concerned. Deputy Austin was dispatched to Creamer's Used Furniture by the Caddo Parish Sheriff's Office and arrived shortly before the search of the premises commenced. Austin remained on the premises for a short time and participated to the extent of recording the serial numbers from a few appliances in the back of the store area. He left to answer another call, and returned only after the entire search had been completed. When he returned to the premises the items seized were being loaded into the paddy wagon. Austin at no time entered any area other than the business premises where the two television sets were found. He did not personally seize any items, and did not participate in the removal of items from the premises. Given his limited participation and knowledge as to the extent of the search during his absence, we agree with the district court that he was really only a "byst...