Creighton v. Anderson, 89-5479

• Decision Date: 17 December 1990
• Docket Number: No. 89-5479,89-5479
• Citation: 922 F.2d 443
• Parties: Robert E. CREIGHTON, Jr. and Sarisse Creighton, husband and wife, individually, and on behalf of their minor children, Shaunda Creighton and Tiffany Creighton, Appellants, v. Russell ANDERSON, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 443

922 F.2d 443

Robert E. CREIGHTON, Jr. and Sarisse Creighton, husband and

wife, individually, and on behalf of their minor

children, Shaunda Creighton and Tiffany

Creighton, Appellants, v. Russell ANDERSON, Appellee.

No. 89-5479.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1990.

Decided Dec. 17, 1990.

John P. Sheehy, Minneapolis, Minn., for appellants.

Jon M. Hopeman and Robert M. Small, Asst. U.S. Attys., Minneapolis, Minn., for appellee.

Before JOHN R. GIBSON, Circuit Judge, and ROSS and HENLEY, Senior Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

The fourth amendment claims under 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), of Robert E. Creighton, Jr. and his wife Sarisse, individually and on behalf of their minor children, are before us again. The district court ¹ granted summary judgment in favor of Russell Anderson in 1984, which this court reversed on appeal, Creighton v. City of St. Paul, 766 F.2d 1269 (8th Cir.1985). The Supreme Court in turn reversed the judgment of this court and remanded for further proceedings, particularly with respect to the issue of qualified immunity. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The district court, after allowing limited additional discovery, again granted summary judgment in favor of Anderson on the basis of qualified immunity. See Creighton v. Anderson, 724 F.Supp. 654 (D.Minn.1989). The Creightons appeal again, arguing that qualified immunity was not available to Anderson because a reasonable officer would not have searched the Creighton home without a search warrant, that the law of the case precludes summary judgment and, if it does not, that sufficient factual issues remain to prevent it. Finally, the Creightons argue that their discovery was unduly restricted. We affirm.

The Creightons' claims arise out of Anderson's warrantless search of their home in quest of a bank robber. Because the procedural posture of this case is an appeal from summary judgment, we state the facts in the light most favorable to the plaintiffs, as did the district court, see Anderson, 724 F.Supp. at 656-57, and we review the district court's decision de novo, Suburban Newspapers v. Kroger Co., 886 F.2d 1060, 1061 (8th Cir.1989). Because the inquiry is whether Anderson is entitled to qualified immunity, we focus on facts that were known to Anderson at the time he undertook his search. See Anderson v. Creighton, 483 U.S. at 641, 107 S.Ct. at 3039 (question is whether a reasonable officer could have believed Anderson's warrantless search lawful in light of information the searching officers possessed).

On November 11, 1983 at 3:30 in the afternoon an armed man robbed the Minnesota Federal Savings and Loan. Anderson, an FBI agent, received a call at home shortly after the robbery. He went to the bank to investigate and there obtained descriptions of the robber and the robbery, including the getaway car. Anderson left the bank at about 6:30 in the evening, with the suspicion that Vadaain Dixon was the robber.

Dixon had recently pleaded guilty to charges on four armed bank robberies and had been in custody at the Volunteers of America halfway house, awaiting sentencing. Anderson was the FBI officer in charge of Dixon's earlier robbery cases. Anderson already knew that on November 9, Dixon had failed to return to custody from a daytime furlough and was therefore a fugitive on November 11. Anderson also knew Dixon was drug dependent and had a history of robbery with guns going back to 1974. Furthermore, he knew Dixon had tried to run over a police officer while escaping from an earlier robbery. The physical description of the robber Anderson received at Minnesota Federal matched Dixon's characteristics. Anderson went from the bank to the St. Paul police department where two witnesses independently picked Dixon's picture out of a photo line-up at about 8:00 p.m.

Anderson and several officers set out to look for Dixon. ² They first went to the home of his mother, Iris Dixon, where they encountered Jamie Dixon, Vadaain's brother, who was known to have driven a getaway car for Vadaain after a previous robbery. They did not find Vadaain at his mother's house, but they obtained from Jamie the addresses of several of Vadaain's relatives and descriptions of their cars. Sarisse Creighton, Vadaain's sister, was one of those relatives.

Anderson and the officers next went to Vadaain's grandmother's house. She consented to their search of her house, but they were unable to find Vadaain there.

At this point, Anderson possessed the following information suggesting that Vadaain would be at the Creightons' house:

1. Witnesses had described the get away car as burgundy or maroon over silver, possibly a Buick, possibly a darker color, and Jamie Dixon had just described the Creightons' car as a 1977 Oldsmobile, red or burgundy in color.

2. On November 10 Anderson had spoken to Vadaain's probation officer William Johnson. Johnson told Anderson that he had spoken earlier to Cheryl Dixon, Vadaain's wife, and that she reported that she had been living with the Creightons because their house was near a beauty school where she was a student, and that she had used the Creightons' car to pick up Vadaain on his daily furloughs. Vadaain himself had also told Johnson that Cheryl was living at the Creightons. Furlough cards he had filled out indicated that he had occasionally spent time at the Creightons' during his day furloughs. Johnson generally relayed the information from the furlough cards to Anderson as they came in.

3. Cheryl Dixon had admitted driving the getaway car for Vadaain in two prior bank robberies.

After leaving the grandmother's house, Anderson and the officers went to the Creighton house at about 8:40 p.m. without a search warrant. Some officers went to the back of the house, while Anderson and others went to the front door. Several of the officers carried shotguns. Robert Creighton answered the door. The officers entered without asking Creighton's consent. Mr. Creighton testified that when he asked the officers for a search warrant, they said: "We don't have a search warrant. I don't need a search warrant; you watch too much TV." The officers entered the house peaceably. However, Mr. Creighton testified that later, when he was taking the officers to the garage to view their car, as Mr. Creighton tried to get past one of the officers to reach the garage door, the officer hit him. Mrs. Creighton testified that officers also struck and shook one of her daughters. The Creightons do not contend that Anderson was involved in the assaults.

I.

The Creightons claim that Anderson's actions violated their right to be free of a warrantless search of their home where no exigent circumstances existed. Anderson claims that he is entitled to qualified immunity because a reasonable officer, possessing the information he possessed, could have believed exigent circumstances did exist. See Anderson v. Creighton, 483 U.S. at 641, 107 S.Ct. at 3039. Once the plaintiff has demonstrated that the law governing the plaintiffs' rights was clearly established at the time of the defendant's acts, the defendant has the burden of proof with respect to all other elements of the qualified immunity defense. Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir.1989).

The district court held that the undisputed facts showed Anderson was entitled to summary judgment. The Creightons argue on appeal that summary judgment should not have been entered for Anderson because there are disputed facts that would make a difference to the outcome and that even the facts as stated by the district court do not show that Anderson acted reasonably.

Whether a given set of facts entitles the defendant to qualified immunity is a question of law, see Garionis v. Newton, 827 F.2d 306, 309 (8th Cir.1987); E-Z Mart Stores, Inc. v. Kirksey, 885 F.2d 476, 477 (8th Cir.1989), which may be decided on summary judgment. However, if there is a dispute over facts that might affect the outcome of the suit under the law of qualified immunity, there can be no summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Dorman v. United States, 435 F.2d 385, 392-93 (D.C.Cir.1970), provides the legal framework for determining whether Anderson's search was lawful. This circuit has adopted Dorman's balancing test for determining whether exigent circumstances exist. Salvador v. United States, 505 F.2d 1348, 1351-52 (8th Cir.1974). Under the Dorman test, a court determining whether there are exigent circumstances that would justify a warrantless search must consider: (1) the seriousness of the alleged offense (2) whether there is reasonable belief that the suspect is armed; (3) whether there is a clear showing of probable cause to believe that the suspect committed the alleged offense; (4) whether there is strong reason to believe that the suspect is on the premises; (5) the likelihood that the suspect will escape if not swiftly apprehended; and (6) whether entry may be made peaceably. ³ Salvador, 505 F.2d at 1351.

The Creightons first argue that the facts cited by the district court do not establish that a reasonable officer in Anderson's place could have believed his actions legal. The Creightons essentially concede that four ⁴ of the Dorman factors tend to establish exigent circumstances. They argue that considering two of the Dorman factors--whether there was strong reason to believe that the suspect was on the premises and whether the entry could be made peaceably--Anderson's conduct was not reasonable as a matter of law.

From the facts in the record, we conclude that Anderson could reasonably have believed there was strong reason to think Dixon would be at the Creighton home. First, he had information directly linking Vadaain and his wife,...