Holmes v. Kucynda, No. 02-11408.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBarkett
Citation321 F.3d 1069
Docket NumberNo. 02-11408.
Decision Date13 February 2003
PartiesMelinda HOLMES, Plaintiff-Appellant, v. Steven C. KUCYNDA, Marty David Rolfe, James C. Bullock, Jason W. Poole, Cobb County, a Political Subdivision of the State of Georgia, Defendants-Appellees.

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321 F.3d 1069
Melinda HOLMES, Plaintiff-Appellant,
v.
Steven C. KUCYNDA, Marty David Rolfe, James C. Bullock, Jason W. Poole, Cobb County, a Political Subdivision of the State of Georgia, Defendants-Appellees.
No. 02-11408.
United States Court of Appeals, Eleventh Circuit.
February 13, 2003.

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James Anthony Eidson, Timothy Robert Brennan, Eidson & Associates, P.C., Atlanta, GA, for Plaintiff-Appellant.

Hugh William Rowling, Jr., Sr. Associate County Atty., Marietta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

BARKETT, Circuit Judge:


Melinda Holmes appeals an adverse summary judgment granted on the basis of qualified immunity to defendants Cobb County Police Officers Steven C. Kucynda, Marty D. Rolfe, James C. Bullock, and Jason W. Poole ("the Officers"). Holmes filed suit pursuant to 42 U.S.C. § 1983 claiming that the defendants violated her constitutional rights under the Fourth Amendment to be free from unreasonable searches and seizures. Holmes also appeals an adverse summary judgment granted to defendant Cobb County ("the County") on her claim that the County maintained a policy of inadequately training its police officers, especially with regard to warrantless entries, searches, and arrests.

We affirm the summary judgment on behalf of the County. We affirm that portion of the summary judgment that grants qualified immunity to the officers on Holmes' claim that they entered the apartment she was in without consent. However, in view of factual disputes in the record, we vacate and reverse the remainder of the summary judgment granted to the officers.

BACKGROUND

In deciding whether the district court erred in granting summary judgment, we must consider all of the evidence in the light most favorable to Holmes, as the nonmoving party, and resolve all issues of material fact in her favor. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). Viewed in this light, the record reveals the following:

In the early morning hours of November 2, 1998, Officer Rolfe was dispatched to the Post Woods Apartments in Atlanta, Georgia

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on a "possible signal 86" which denotes activities ranging from a simple argument to domestic violence. Rolfe responded to the call along with his partner Kucynda. Soon thereafter, Bullock and Poole joined Rolfe and Kucynda at the three-story apartment building from which the call had been placed.1 The complainant who placed the 911 call could not definitively state if the disturbance occurred in the apartment above or below her own second floor apartment. The Officers then separated and began to knock on doors to determine if there had been a disturbance. While Bullock and Poole remained on the second floor, Rolfe went to the floor above the 911 caller and Kucynda went to the one below. Kucynda testified that when he approached the door of Wayne Wisong's apartment, he heard an argument emanating from within.2 Kucynda notified the other Officers that he had located the disturbance and, as a group, they approached the apartment and knocked on the door.

Prior to the Officers' arrival, Holmes and Wisong had been arguing in the living room of the apartment. However, Holmes asserted in her deposition that the argument was not loud enough for anyone outside the apartment to hear. Holmes also testified that when the Officers knocked on the door the argument had been over for at least five minutes and the couple had already retired for the evening. When the Officers arrived, both Holmes and Wisong were undressed and in bed, but not yet asleep. After they heard the knock on the door, Wisong put on a pair of shorts and a shirt and went to answer the door while Holmes went across the hall to the bathroom to secure a robe.

Wisong answered the door and Rolfe asked him what was going on in the apartment. Wisong responded that he and his girlfriend (Holmes) had been arguing. Rolfe then asked Wisong if the Officers could enter his apartment. The Officers testified that although Wisong did not respond verbally, he opened the door and took a step backwards, indicating acquiescence. All four Officers then entered the apartment. From the bathroom, Holmes heard one of the Officers say, "stand back." Wisong informed Holmes that the police were at the door and, a few minutes later, requested that she come to the entryway because the police wanted to see her. Holmes responded that she would do so as soon as she was dressed.

Because Holmes had discovered that her robe was not in the bathroom, she dashed, still nude, across the hallway into the main bedroom to find it. At this juncture, she saw Kucynda rush down the hall toward her and follow her into the bedroom where Holmes quickly located the robe in one of her suitcases and put it on.3

Kucynda entered the bedroom and told Holmes to sit on the bed. After Holmes complied, Kucynda asked her what had transpired between herself and Wisong. She asked what he was doing in the apartment. Kucynda responded by asking

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Holmes if she and Wisong were having a fight, and she answered that they had had an argument earlier. Kucynda asked if she had been beaten, to which she replied "absolutely not." Kucynda then requested that Holmes describe the content of the argument. When Holmes refused to reveal the personal nature of the argument, he demanded that she do so and she reluctantly complied, explaining that earlier in the evening she and Wisong had been viewing pictures of a previous trip together and Wisong had mentioned that she looked thinner in the pictures than she did that night. Holmes explained to Kucynda that this comment had upset her and, eventually, an argument ensued. At some point during Kucynda's interrogation Holmes began to cry for a brief time.4

Kucynda then asked Holmes her name, date of birth, and place of residence. Holmes answered these questions and informed Kucynda that she did not reside in the apartment, but rather in Norcross, Georgia, and was only visiting Wisong. Holmes' suitcase and duffle bag were in the bedroom, and her clothes were in and around the suitcase, including four dresses in the closet.5 At this point, Holmes attempted to leave the bedroom and Kucynda ordered her to sit back down on the bed.

While Kucynda was interrogating Holmes, Bullock entered the bedroom and asked Holmes if she would consent to a search of the bedroom. Holmes replied that she would not.6 Nonetheless, Bullock searched the bedroom, but did not locate any contraband, and left the room.

Soon thereafter, Kucynda leaned out the bedroom door to talk with the other Officers. When he stepped back into the bedroom, Kucynda ordered Holmes to get dressed and she was compelled to do so in his presence. Kucynda then escorted Holmes to the living room where she was asked to produce identification. She told the Officers she had a driver's license in her wallet which was in her purse on the living room table. The Officers retrieved the license, which confirmed that she lived in Norcross, Georgia. They then returned the wallet to the purse and the purse to the table.

During the time Kucynda had been interrogating Holmes, Rolfe had been questioning Wisong. Wisong, like Holmes, indicated that the argument had been nonviolent. Rolfe next requested Wisong's identification. Wisong told the Officers that he would have to locate his wallet in the apartment, as he did not have identification in the clothes he had thrown on to answer the door. When Wisong walked to the apartment's second bedroom, which was furnished as an office, Rolfe, Bullock, and Poole followed him. While searching for his identification, Wisong opened a drawer in the desk, and Bullock and Rolfe testified that they observed a clear plastic bag containing a white powdery substance that they presumed was cocaine. When they confiscated the clear bag they also saw a yellow manila envelope, which they opened and found to contain marijuana. At this point the Officers placed Wisong under arrest and took him back to the living room.

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Also in the living room, Rolfe placed Holmes under arrest, handcuffed her, and asked Wisong for permission to search the apartment. Wisong declined. Rolfe then transported Holmes and Wisong to the Cobb County Adult Detention Center. Officers Bullock and Poole remained in the apartment in anticipation of performing a more complete search upon obtaining a warrant. However, Rolfe was unable to obtain a search warrant, so Bullock and Poole exited the apartment and locked the door.

After booking Wisong and Holmes, Rolfe went to the Cobb County Superior Court and presented Magistrate Judge McLendon with a warrant application for the arrest of Holmes and Wisong. All of the Officers testified in their depositions that the bag of white powder and the yellow manila envelope containing the marijuana had been found in the office/den of the apartment — not in the bedroom where Wisong and Holmes were sleeping — and that no other drugs were found in the apartment. Moreover, the deposition testimony of the Officers relating their conversations with Holmes indicate that the only time she did not readily answer their questions was when Kucynda insisted that Holmes tell him the nature of her argument with Wisong, which was personal and embarrassing to her, but which she revealed upon his insistence. Nonetheless, in contrast to what the Officers had actually observed, the application for Holmes' arrest warrant reflected that "both [Wisong & Holmes] sleep in bedroom with drugs"; that there were "marijuana seeds in plain view"; that presumably Rolfe, as the applicant, "believed custody was joint"; and that Holmes was "evasive as to presence of others." Based upon this application, Magistrate McLendon granted the...

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  • Ermini v. Scott, Case No: 2:15-cv-701-FtM-99CM.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 5, 2017
    ...the Fourth Amendment requires that warrant applications contain sufficient information to establish probable cause." Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th Cir. 2003). "Probable cause to support a search warrant exists when the totality of the circumstances allows the conclusion that ......
  • Alexander v. City of Muscle Shoals, Civil Action No. CV–09–S–1396–NW.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • January 26, 2011
    ...is so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.' ” [766 F.Supp.2d 1236] Holmes v. Kucynda, 321 F.3d 1069, 1078 (11th Cir.2003) (alterations added) (quoting St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). The cou......
  • Nelson v. Lott, Civil Action No. 5:18-CV-0059-CLS
    • United States
    • U.S. District Court — Northern District of Alabama
    • July 24, 2018
    ...side of caution by protecting them both from liability ‘and the other burdens of litigation, including discovery.’ " Holmes v. Kucynda , 321 F.3d 1069, 1077 (11th Cir. 2003) (quoting Lambert v. Fulton County , 253 F.3d 588, 596 (11th Cir. 2001) ). Nevertheless, the defense does not protect ......
  • Harris v. Coweta County, Ga., No. 03-15094.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 23, 2005
    ...v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "The essence of qualified immunity is notice." Holmes v. Kucynda, 321 F.3d 1069, 1077 (11th Cir.2003) (citing Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 For at least twenty years, since Garner was dec......
  • Request a trial to view additional results
230 cases
  • Ermini v. Scott, Case No: 2:15-cv-701-FtM-99CM.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 5, 2017
    ...the Fourth Amendment requires that warrant applications contain sufficient information to establish probable cause." Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th Cir. 2003). "Probable cause to support a search warrant exists when the totality of the circumstances allows the conclusion that ......
  • Alexander v. City of Muscle Shoals, Civil Action No. CV–09–S–1396–NW.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • January 26, 2011
    ...is so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.' ” [766 F.Supp.2d 1236] Holmes v. Kucynda, 321 F.3d 1069, 1078 (11th Cir.2003) (alterations added) (quoting St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). The cou......
  • Nelson v. Lott, Civil Action No. 5:18-CV-0059-CLS
    • United States
    • U.S. District Court — Northern District of Alabama
    • July 24, 2018
    ...side of caution by protecting them both from liability ‘and the other burdens of litigation, including discovery.’ " Holmes v. Kucynda , 321 F.3d 1069, 1077 (11th Cir. 2003) (quoting Lambert v. Fulton County , 253 F.3d 588, 596 (11th Cir. 2001) ). Nevertheless, the defense does not protect ......
  • Harris v. Coweta County, Ga., No. 03-15094.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 23, 2005
    ...v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "The essence of qualified immunity is notice." Holmes v. Kucynda, 321 F.3d 1069, 1077 (11th Cir.2003) (citing Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 For at least twenty years, since Garner was dec......
  • Request a trial to view additional results

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