Giancola v. State of W. Va. Dept. of Public Safety, 86-1270

Citation830 F.2d 547
Decision Date07 October 1987
Docket NumberNo. 86-1270,86-1270
PartiesTony GIANCOLA; Margaret Hughes, Plaintiffs-Appellants, v. STATE OF WEST VIRGINIA DEPARTMENT OF PUBLIC SAFETY; H.C. Ryan, individually and in his official capacity as defendant department's employee and agent; Timothy Hatton, individually and in his official capacity as defendant Department's employee and agent; C.W. Mitchem, individually and in his official capacity as defendant Department's employee and agent; W.S. Coburn, individually and in his official capacity as defendant Department's employee and agent; Monroe County, West Virginia, Sheriff's Office; Joseph Galusek, individually and in his official capacity as defendant Sheriff's Office's employee and agent; Warren Smith, individually and in his official capacity as defendant Sheriff's Office's employee and agent; Charles Butcher, individually and in his official capacity as defendant Sheriff's Office's employee and agent; U.S. Department of Justice; U.S. Drug Enforcement Agency; Various Unknown Local, State and Federal Law Enforcement Officers and Agencies; Does 1-100, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

James Daniel Gerl (Carole L. Scotti, Lewisburg, W. Va., on brief), for plaintiffs-appellants.

Jeffrey Michael Wakefield (Kay, Casto & Chaney, Charleston, W. Va., R.G. McNeer, David C. Ray, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, W. Va., Michael Carey, U.S. Atty., Mary S. Feinberg, Asst. U.S. Atty., Charleston, W. Va., on brief) for defendants-appellees.

Before CHAPMAN and WILKINS, Circuit Judges, and JOE F. ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation.

WILKINS, Circuit Judge:

Plaintiffs Tony Giancola and Margaret Hughes, husband and wife, appeal the district court's grant of summary judgment in favor of all Defendants. Plaintiffs sought damages and injunctive relief arising from helicopter surveillance designed to locate marijuana cultivating operations in Monroe County, West Virginia. 1 They did not contest the constitutionality of helicopter surveillance in general, but rather contended that the surveillance and search of their property was conducted in an unconstitutional manner. We disagree and affirm.

I.

Since 1981 the Drug Enforcement Administration has provided financial assistance to the West Virginia Department of Public Safety for marijuana eradication operations. These funds are primarily utilized for helicopter surveillance. Plaintiffs complain of surveillance of their property on September 2, 1983 and August 24, 1984. 2

On September 2, 1983, two helicopters conducted surveillance in Monroe County. This operation was one in a series which had identified over 30 marijuana fields in the previous week. As detailed in United States v. Bernard, 757 F.2d 1439, 1440-41 (4th Cir.1985), some of these fields were protected by a variety of security devices, including trip wires, barbed wire stretched across paths at eye level, steel traps, electric fences, and guard dogs.

No landing or entry was made on Plaintiffs' property on September 2, 1983. Giancola did testify that the helicopters flew over his property for ten to twenty minutes at an altitude of 100 feet, which he considered to be dangerously low. 3 He further testified that the helicopters were often flown at an angle to afford the occupants a better view, but admitted he could not determine the number of occupants or whether they were wearing uniforms. Both Plaintiffs admitted that the wind generated by the rotors did not disrupt anything on the ground. The testimony of Hughes was similar to that of Giancola, except her estimates of altitude were somewhat lower.

The second incident of which Plaintiffs complain occurred on August 24, 1984, the single day that year on which helicopter surveillance was conducted in Monroe County. Only one helicopter was utilized, occupied by state troopers Mitchem and Coburn and piloted by a civilian. The accompanying ground crew was composed of state trooper Ryan, and Monroe County Sheriff Deputies Galusek, Smith and Butcher. Based on the observations of the officers in the helicopter as it flew over Plaintiffs' property, the ground crew was radioed and instructed to enter.

As the helicopter flew over Giancola's property, he was observed exiting his house and moving a tarp which covered a pile of wood and brush. Trooper Coburn testified Giancola placed an armload of vegetation which was "identical to what we had observed thousands of times as being marijuana" in the center of the pile and ignited it. He was then observed placing a child on a motorcycle, and riding to a neighbor's house where he left the child. He was next observed returning to his property on a logging road partially obscured from aerial view by trees. He then rode down the road and back again, entered his house, donned beekeeper coveralls, and emerged and tended the fire. He then drove a camouflaged truck down the road and back again. It was during this time that Hughes was observed disappearing into the woods. Giancola parked the truck and began riding the motorcycle up and down the road. The ground crew subsequently arrived and intercepted him. Giancola was handcuffed and taken to his house. He stated that there was no one else on the property, in direct conflict with the information received from the air crew. When they reached his house, Trooper Ryan stepped inside to determine if any other individuals were located there, and then promptly exited. 4

As the helicopter unsuccessfully attempted to land near the house, a canoe was knocked off a boulder and damaged. Giancola also claimed that a beehive was toppled. He testified that in attempting to land, the helicopter reached an altitude much lower than before, approximately 30 to 40 feet above the ground.

After landing in a nearby field, the air crew joined the ground crew. When asked by Trooper Mitchem about the other individual who had been observed from the air, Giancola replied that his wife had walked to the neighbor's house where he had taken the child. This information was inconsistent with the direction in which the air crew observed her disappearing into the woods.

Deputy Galusek remained with Giancola while the adjoining woods and fields were searched. Galusek made certain that the handcuffs were not too tight, and at one point unlocked them to allow Giancola to remove the uncomfortable beekeeper coveralls. At Giancola's request, Galusek twice accompanied him inside the house for something to drink.

Hughes was eventually located in a search of the surrounding woods and was escorted to the house. The handcuffs were removed from Giancola shortly after she arrived. Since no marijuana was discovered, the officers departed.

Plaintiffs subsequently filed this suit seeking relief pursuant to 42 U.S.C.A. Sec. 1983 (West 1981) and various state law causes of action. On appeal, Plaintiffs have failed to argue either the merits of the state law causes of action, or that these claims can survive if summary judgment was proper on the section 1983 claims. Consequently, the state law claims are deemed abandoned.

II.

Plaintiffs have named as defendants a combination of federal, state and county law enforcement officers in their individual and official capacities. However, since section 1983 reaches only those acting under color of state law, the liability of the federal officers, if any, must be pursuant to 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). Because the district court addressed the merits of all claims, the allegations against the federal officials will be treated as if they were properly pled Bivens claims.

The claims against the officers in their individual capacities seek damage awards against the officers personally. In response to these claims the officers have raised the defense of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Qualified immunity shields the officers from awards of damages if their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person should have been aware. Furthermore, the Supreme Court has recently held that an officer is entitled to summary judgment if a reasonable officer could have believed that the search comported with the fourth amendment, even though it actually did not. Anderson v. Creighton, --- U.S. ----, ----, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987).

On the other hand, the claims against the officers in their official capacities are claims against the entities for which the officers were acting. Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). While the entities are not entitled to assert a qualified immunity defense, they are not liable under respondeat superior principles. Rather, to establish liability on behalf of the entity, it must be shown that the actions of the officers were unconstitutional and were taken pursuant to a custom or policy of the entity. Monell v. Department of Social Services of New York, 436 U.S. 658, 690-92, 98 S.Ct. 2018, 2035-37, 56 L.Ed.2d 611 (1978). If the officers' actions were in compliance with constitutional standards, there is no liability on the part of the officers or the employing entities.

III.

The fourth amendment protects persons against unreasonable searches and seizures. Plaintiffs argue that the standards established by the fourth amendment were violated in two respects. First, Plaintiffs assert the manner in which the helicopter surveillance was conducted was unreasonable. Second, Plaintiffs claim that the entry and search of their property on August 24, 1984 was unlawful because the officers should have first obtained a search warrant.

With respect to their first argument, Plaintiffs recognize that the Supreme...

To continue reading

Request your trial
57 cases
  • Mowbray v. Kozlowski
    • United States
    • U.S. District Court — Western District of Virginia
    • 25 Octubre 1989
    ...established statutory or constitutional rights of which a reasonable person should have been aware." Giancola v. West Virginia Dept. of Pub. Safety, 830 F.2d 547, 550 (4th Cir.1987). As initially stated, qualified immunity provided officials protection from suits for damages. Harlow, 457 U.......
  • Leaders of A Beautiful Struggle v. Balt. Police Dep't, Civil Action No. RDB-20-0929
    • United States
    • U.S. District Court — District of Maryland
    • 24 Abril 2020
    ...FAA regulations and such flights were a "regular occurrence" in the area. Id. at 434. Additionally, in Giancola v. State of W. Va. Dep't of Pub. Safety , 830 F.2d 547, 551 (4th Cir. 1987), the Fourth Circuit held that helicopter surveillance conducted at 100 feet over personal property of P......
  • State v. Forshey
    • United States
    • West Virginia Supreme Court
    • 19 Abril 1989
    ...home could also be construed as a protective sweep of the area similar to the one conducted in Giancola v. State of W.Va. Dept. of Public Safety, 830 F.2d 547 (4th Cir.1987), 7 since the officers had already seized one set of marijuana plants, thereby confirming that the property was being ......
  • Little v. Smith
    • United States
    • U.S. District Court — Western District of North Carolina
    • 17 Agosto 2000
    ...agency policy or custom); Hinkle v. City of Clarksburg, 81 F.3d 416, 420 (4th Cir. 1996); and Giancola v. State of West Virginia Dept. of Pub. Safety, 830 F.2d 547, 550 (4th Cir.1987) ("If the officers' actions were in compliance with constitutional standards, there is no liability on the p......
  • Request a trial to view additional results
1 books & journal articles
  • Aerial Trespass and the Fourth Amendment.
    • United States
    • Michigan Law Review Vol. 121 No. 7, May 2023
    • 1 Mayo 2023
    ...(17.) Dow Chem. Co. v. United States, 476 U.S. 227, 229 (1986). (18.) Id. at 239. (19.) Eg., Giancola v. W. Va. Dep't of Pub. Safety, 830 F.2d 547 (4th Cir. 1987); United States v. Breza, 308 F.3d 430 (4th Cir. 2002). (20.) State v. Little, 918 N.E.2d 230, 236-37 (Ohio Ct. App. 2009), appea......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT