Cross v. City of Des Moines, s. 91-1425

• Decision Date: 28 May 1992
• Docket Number: 91-2102,Nos. 91-1425,s. 91-1425
• Citation: 965 F.2d 629
• Parties: Cindy Louise CROSS, Appellee, v. CITY OF DES MOINES, John Woolsey; Dennis Rich, Appellants. Cindy Louise CROSS, Appellee, v. CITY OF DES MOINES, Appellant, John Woolsey; Dennis Rich.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 629

965 F.2d 629

Cindy Louise CROSS, Appellee, v. CITY OF DES MOINES, John Woolsey; Dennis Rich, Appellants.

Cindy Louise CROSS, Appellee, v. CITY OF DES MOINES, Appellant, John Woolsey; Dennis Rich.

Nos. 91-1425, 91-2102.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 12, 1991.

Decided May 28, 1992.

Steven Lussier, Des Moines, Iowa, argued, for appellants.

Thomas Mann, Jr., Des Moines, Iowa, argued, for appellee.

Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.

BEAM, Circuit Judge.

Cindy Louise Cross filed this lawsuit, pursuant to 42 U.S.C. § 1983, claiming that her Fourth Amendment rights were violated when her apartment was searched by John Woolsey and Dennis Rich, police officers for the city of Des Moines, Iowa. Woolsey, Rich, and the City appeal the district court's denial of their summary judgment motion, claiming entitlement to qualified immunity. We reverse.

I. BACKGROUND

According to the uncontradicted deposition testimony of Woolsey and Rich, the two officers were on patrol together in a paddy wagon in the city of Des Moines on the afternoon of June 3, 1988. At about 3:30 p.m., the officers saw a man whom they believed was Floyd Cross (appellee's husband) driving a gold and white Cadillac. The officers reported the automobile's license number to a police dispatcher. The dispatcher informed the officers that the car was registered to a Cindy Cross, who resided at 1821 Woodland. The dispatcher also confirmed the officers' suspicion that there was an outstanding felony arrest warrant for Floyd Cross.

Neither of the officers apparently saw the face of the driver of the Cadillac, but a number of factors led them to believe it was Floyd Cross driving the car. First, although it had been about six months since Officer Woolsey had seen either Floyd Cross or the Cadillac, Woolsey had been involved in two previous encounters with Floyd Cross while Floyd Cross was driving the car and Woolsey remembered the license plate number of the car from these earlier episodes. Joint Appendix at 224. Second, on one occasion two or three years prior, when Woolsey had arrested Floyd Cross, Floyd Cross had been driving a black Chrysler registered to "Cindy Laughlin." On that occasion, Floyd Cross had stated to Woolsey that Cindy Laughlin was his wife. Id. at 271. Third, the person whom the officers saw driving the car on June 3 was a "black male of large stature" or with a "pretty stocky build," thus at least partially resembling Floyd Cross. Id. at 223, 294. What neither Woolsey nor Rich knew on June 3, however, was that Floyd Cross was in jail in Rock Island, Illinois. The driver of the car that afternoon was likely an employee of the automotive shop where Cindy Cross had taken the car for repairs earlier in the day. Id. at 37-39.

After sighting the person they thought was Floyd Cross, Woolsey and Rich tried to follow the car. They lost sight of it, however, in the city's traffic. Id. at 223-24, 291-93. The officers then requested that an announcement be broadcast to other patrol cars in Des Moines stating that Floyd Cross had been seen driving the Cadillac and that the vehicle should be stopped and its driver held. Just before losing sight of the car, the officers noticed that it was headed in an easterly direction--not in the direction of 1821 Woodland. The officers thus drove to two addresses in that direction where they thought they might find Floyd Cross. Id. at 226-27. Cross, of course, was not at either address. The regular patrol duties of the officers kept them occupied thereafter until about 6:30 p.m., when they drove to 1821 Woodland. Id. at 227-29.

At 1821 Woodland, an apartment building, the officers found the Cadillac parked in the building's lot. After failing to find Cindy Cross's name on the building's mailboxes, Woolsey and Rich asked the building manager, Donna Grossman, where Cindy Cross lived. Id. at 203, 229, 299. Grossman apparently inferred from the question that something might be wrong with Cindy Cross. Grossman ran down the building's hallway and into Cross's apartment, the door to which was open, shouting, "Cindy, Cindy, are you alright?" Id. at 48, 203, 208. Woolsey and Rich followed Grossman to the apartment.

At this point, the police officers' account of what happened differs from that of Cindy Cross. According to Woolsey and Rich, the officers knocked on Cross's open door and asked if Floyd Cross was home. Id. at 229-31, 299-301. Cindy Cross replied, "What has he done now?" Id. at 301. Woolsey and Rich explained that they had an arrest warrant for Floyd Cross. Cindy Cross responded that Floyd was in jail in Rock Island, Illinois. Id. at 233, 301. The officers asked her if they could search her apartment and she responded with words to the effect, "Go ahead." Id. at 233-34, 302. The officers then searched the apartment, looking everywhere an adult could hide, without objection from Cindy Cross. Id. at 238-39, 303-04. After the officers completed their search, Cindy Cross asked them, "Don't you guys need a search warrant?" Id. at 240. The officers reminded her that she had consented to the search and also told her that a search warrant was not necessary because there was an outstanding arrest warrant for Floyd Cross. Id. at 239-40.

Cindy Cross's version of the events and conversation is different. Woolsey and Rich, according to Cross, entered her apartment through the door left open by the manager. Id. at 49-50. One of the officers asked her the whereabouts of Floyd Cross and told her that Floyd Cross had been seen driving her car earlier in the day. Id. at 50. As the officers moved through her apartment, Cindy Cross explained to them that she had taken her car to a repair shop earlier that day and that the person seen driving the car was probably a repairman. Id. at 52. While the officers searched her apartment, Cindy Cross asked them, "Don't you need a search warrant to search my home?" Id. The officers explained that it was not necessary because they had an arrest warrant for Floyd Cross. Id. at 52-53. Sometime before the search was complete, Cindy Cross told the officers that Floyd Cross was in jail in Rock Island, Illinois (which the officers confirmed several days later). Id. at 54, 323.

Cindy Cross filed a complaint in district court in July 1988, alleging, among other points, that Woolsey, Rich, and the City had violated her Fourth Amendment rights when the officers searched her apartment. Woolsey, Rich, and the City filed a motion for summary judgment. They argued, in part, that the officers were entitled to qualified immunity for their actions because the search was conducted on the basis of the arrest warrant for Floyd Cross and with probable cause to believe Floyd Cross was in the apartment, or, in the alternative, that Donna Grossman's behavior in rushing into Cross's apartment created exigent circumstances that allowed them to search the apartment.

The district court denied the summary judgment motion. The court concluded that a question of material fact exists as to whether there was probable cause to believe Floyd Cross was in the apartment. The district court also concluded that the question of exigent circumstances required further development at trial. Cross v. City of Des Moines, et al., No. 88-1261-E, Order at 5, 7-8 (S.D.Iowa Jan. 10, 1991). Woolsey and Rich now appeal the district court's decision. ¹ See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (a district court's denial of a claim of qualified immunity, "to the extent that it turns on an issue of law," is an appealable final decision under the collateral order doctrine).

II. DISCUSSION

The Supreme Court noted in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), that "[w]hen government officials abuse their offices, 'action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.' " Id. at 638, 107 S.Ct. at 3038. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982)). The Court also acknowledged, however, that "permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties." Id. To accommodate "these conflicting concerns" the Supreme Court has "generally provid[ed] government officials performing discretionary functions with a qualified immunity." Id. Qualified immunity " 'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.' " Hunter v. Bryant, --- U.S. ----, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)).

The test for determining when an official is entitled to this protection was set forth by the Supreme Court in Harlow v. Fitzgerald. According to Harlow, law enforcement officers are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. In the ten years since the Harlow decision, the Supreme Court (as well as other federal courts) has further explained the nature of this test.

One of the Court's most recent statements is in Siegert v. Gilley, --- U.S. ----, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), where the Court attempted to "clarify the analytical structure under which a claim of qualified immunity should be addressed." Id. at 1793. According to Siegert, a court must first determine whether "the plaintiff has asserted a violation of a constitutional right at all." Id. If no constitutional right has been asserted, the plaintiff's lawsuit must be dismissed. "Decision of this purely...