Frison v. Zebro

• Decision Date: 21 August 2003
• Docket Number: No. 02-2226.,02-2226.
• Citation: 339 F.3d 994
• Parties: Heidi FRISON, Plaintiff-Appellant, Erica Frison, Plaintiff, v. Daniel J. ZEBRO, sued as Officer Daniel J. Zebro; Sgt. Peck; Officer Scagle; Officer S. Bystrom; Officer Merrill; Defendants—Appellees, Jane Doe, (whose true name is unknown); John Smith; Jim Jones, (whose true name is unknown), all in their personal and official capacities; Defendants, City of St. Paul, Minnesota, Defendant-Appellee, Todd Feroni, Officer, Defendant— Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

339 F.3d 994

Heidi FRISON, Plaintiff-Appellant Erica Frison, Plaintiff, v. Daniel J. ZEBRO, sued as Officer Daniel J. Zebro; Sgt. Peck; Officer Scagle; Officer S. Bystrom; Officer Merrill; Defendants—Appellees Jane Doe, (whose true name is unknown); John Smith; Jim Jones, (whose true name is unknown), all in their personal and official capacities; Defendants City of St. Paul, Minnesota, Defendant-Appellee Todd Feroni, Officer, Defendant— Appellee.

No. 02-2226.

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2003.

Filed: August 21, 2003.

Jordan S. Kushner, argued, Minneapolis, MN, for appellant.

James F.X. Jerskey, argued, Asst. City Atty., St. Paul, MN, for appellee.

Before WOLLMAN, HEANEY, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Heidi Frison appeals the district court's¹ adverse grant of summary judgment in this civil rights action arising out of a police investigation into alleged crack cocaine distribution out of Frison's home. We affirm.

I.

In the spring of 2000, the St. Paul Police FORCE² unit received a complaint from a St. Paul resident concerning criminal activity occurring at 1069 Greenbrier, the house next door.³ According to the complainant, drug sales were conducted at 1069 Greenbrier at all hours of the day. The complainant told police that she had seen bags of drugs and heard drug dealing conversations, and that she had made similar complaints to police in the past about the criminal activity next door.

Following a three month investigation into the allegations, including surveillance and a controlled drug purchase, Officer Daniel Zebro of the St. Paul Police FORCE applied for, and received, a search warrant for 1069 Greenbrier. The warrant was scheduled to be executed on the evening of June 6, 2000. Prior to execution of the warrant, Officer Zebro and FORCE unit member Todd Ferroni scouted the area around the house. Officer Zebro intended to set up reconnaissance from the complainant's home, located next door to 1069 Greenbrier. While at the complainant's door, the officers encountered Heidi Frison sitting outside of 1069 Greenbrier. She asked the two officers, who were not in police uniform, who they were. The officers told her that they were census workers. Frison then told the "census workers" that she lived at 1069 Greenbrier with her children.

Later that evening, fifteen members of the FORCE unit, dressed in riot gear, executed the search warrant at 1069 Greenbrier. Frison's daughter and grandchild were on the premises at the time. Also present were Jessie Banks and Richard Rhiems, who were living in the attic at 1069 Greenbrier. Frison was detained as she approached the house, and then handcuffed and seated in the living room with her daughter.

During the search, officers recovered a substance that they suspected was crack cocaine. They also found U.S. mail addressed to Heidi Frison, seven cell phones, plastic baggies near the suspected crack cocaine, and $653 in cash. Based on the initial findings of the search, Heidi Frison was arrested for operating a disorderly house in violation of Minnesota Statute § 609.33,⁴ despite her assertion at that time that she did not live in the house. Subsequent testing proved that the substance was not crack cocaine and the charges against Frison were dropped.

Due to the condition of 1069 Greenbrier at the time of the execution of the search warrant, Sergeant John Peck notified the St. Paul housing inspector. The inspector evaluated the home and cited twenty-six violations, including the fact that there was no running water on the premises. As a result, the property was condemned and the inspector issued an order for the occupants to immediately vacate the house. Heidi Frison arranged with police to remove personal items from the home after the condemnation. She placed those items in storage, but failed to pay the storage fees and the items were seized by the storage company.

Frison brought suit against the City and numerous individual officers involved in the investigation of 1069 Greenbrier and the execution of the search warrant at that address. The defendants were granted summary judgment on all counts. Frison appeals the district court's ruling, asserting the following: (1) that the district court erred in concluding that Frison does not have a cause of action under § 1983 based on the officers' impersonation of United States census workers in violation of a federal criminal statute, 18 U.S.C. § 912; (2) that the district court erred in concluding that Frison has not demonstrated a triable Fourth Amendment violation for arrest without probable cause; and (3) that the district court erred in concluding that Frison had not demonstrated a triable Fourth Amendment violation based on the police officers' conduct during and after execution of the search warrant.⁵

II.

"We review a district court's grant of summary judgment de novo, giving the nonmoving party the most favorable reading of the record." Cooksey v. Boyer, 289 F.3d 513, 515 (8th Cir.2002); Gentry v. Georgia-Pacific Corp., 250 F.3d 646, 649 (8th Cir.2001). "Summary judgment `is appropriate where one party has failed to present evidence sufficient to create a jury question as to an essential element of its claim.'" Id. at 649-50 (quoting Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir.2000)).

"In order to survive a motion for summary judgment under § 1983, the plaintiff must raise a genuine issue of material fact as to whether (1) the defendants acted under color of state law, and (2) the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right." Cooksey, 289 F.3d at 515 (citations omitted). Here, it is undisputed that the police acted under color of state law. At issue is whether the district court erred in concluding that Frison cannot show deprivation of a constitutionally protected federal right.

A. Fourth Amendment claims:

We agree with the district court's conclusion that the defendants were entitled to summary judgment on Frison's § 1983 claims based on alleged Fourth Amendment violations. As to Frison's claim that the police arrested her without probable cause, we find more than sufficient evidence to support the arrest. See United States v. Hartje, 251 F.3d 771, 775 (8th Cir.2001) ("Probable cause to conduct a warrantless arrest exists when at the moment of arrest police have knowledge of facts and circumstances grounded in reasonably trustworthy information sufficient to warrant a belief by a prudent person that an offense has been or is being committed by the person to be arrested."). At the time of the arrest, police were executing a valid search warrant at 1069 Greenbrier for suspicion of drug trafficking operations. Police found what they suspected was crack cocaine and other indicia of drug distribution in the home. They also found mail addressed to Heidi Frison at the 1069 Greenbrier address. Frison's child and grand child were on the premises when the search was initiated and Frison was detained approaching the residence. Although Frison at some point disavowed actually living at the house, the facts and circumstances available to police officers at the time were more than sufficient to lead a prudent person to believe that 1069 Greenbrier was a "disorderly house" within the meaning of Minnesota Statute § 609.33, and that Frison was responsible for the disorderly house.

We also agree that Frison cannot show a Fourth Amendment violation based on the officers' conduct during and after the search. Frison asserts that police officers trashed her home in executing the search warrant and then arranged for the house to be condemned by the City housing inspector based on the uninhabitable conditions that the police created. We find nothing in the record to support Frison's allegation that the inspector's involvement in this case was improper or out of the ordinary. The inspector cited twenty-six principal violations in his condemnation report, including a lack of running water, unsanitary conditions in the toilets and sinks, an insect infestation, evidence of a rodent infestation, and hazardous electrical wiring. Frison admitted that there was no running water at the house and conceded that the attic tenants may have been using the toilets and sinks. Frison asserts that the house was clean prior to the search and that any mess was caused by officers dumping the contents of drawers and cabinets in the process of conducting their search. Frison's allegations do not negate the valid basis for the City housing inspector's decision to condemn the house. The district court properly granted summary judgment to the defendants on this claim.

B. Violation of 18 U.S.C. § 912

Frison's final claim of error involves the district court's conclusion that Frison cannot base a 42 U.S.C. § 1983 action on the police officers' violation of 18 U.S.C. § 912. Section 912 provides that "[w]hoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or office thereof, and acts as such, ... shall be fined under this title or imprisoned not more than three years, or both." 18 U.S.C. § 912. There is no dispute that, prior to the execution of the search warrant, two police officers falsely told Frison that they were United States census workers, and that Frison told them she and her children lived at 1069 Greenbrier.

Frison's claim appears to be that the police used her admission, obtained by violating 18 U.S.C. § 912, to establish that she was the proper party to arrest for the disorderly house charge. Frison asserts that, contrary to her statement to the census workers, she was not living at 1069 Greenbrier at the time of the raid, but rather was living nearby with friends. She further asserts that she and her children moved out of 1069 Greenbrier when the water was shut off in mid-May. And, while she was hoping to...