Hummel-Jones v. Strope, HUMMEL-JONES

• Decision Date: 28 July 1994
• Docket Number: HUMMEL-JONES,No. 93-1471,93-1471
• Citation: 25 F.3d 647
• Parties: Eva Marie; Robert Harrison Jones, Jr., Appellants, v. Alan STROPE; Steve Popplewell; R. Fair; D. Tinkler; James Kistler; A. Marmion; Kerry Rowden; Miller County, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 647

25 F.3d 647

Eva Marie HUMMEL-JONES; Robert Harrison Jones, Jr., Appellants, v. Alan STROPE; Steve Popplewell; R. Fair; D. Tinkler;

James Kistler; A. Marmion; Kerry Rowden; Miller

County, Appellees.

No. 93-1471.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 15, 1993.

Decided May 26, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied July 28, 1994.

Mark Belz, St. Louis, MO, argued (Timothy Belz, on the brief), for appellants.

Daniel R. Green, Jefferson City, MO, argued (Daniel R. Green and Jon E. Beetem, on the brief, for appellees Strope and Popplewell, Mark A. Ludwig, on the brief, for appellee Angie Marmion, Jeremiah W. (Jay) Nixon and Greg A. Perry, on the brief, for appellee Kistler), for appellees.

Before BEAM, Circuit Judge, FLOYD R. GIBSON and JOHN R. GIBSON, ^* Senior Circuit Judges.

BEAM, Circuit Judge

Eva Hummel-Jones and Robert Jones, Jr., (collectively "the couple") filed this 42 U.S.C. Sec. 1983 action after a 2:00 A.M. raid of the small birthing clinic at which they were staying. The couple alleged that the named defendants violated their Fourth Amendment rights to be free of unreasonable searches and seizures. The district court entered summary judgment for the defendants after determining that any search and seizure to which the couple may have been subjected did not violate their constitutional rights. The district court also held that even if the couple's rights were violated, the defendants were entitled to qualified immunity. The couple appeals. We reverse.

I. BACKGROUND

This dispute arises out of an investigation of the Country Cradle, a well-established and openly-operated alternative birthing clinic located in rural Missouri. ¹ A registered nurse operated the clinic. Evidently, the defendants' concern that the nurse might be practicing medicine without a license prompted the search at issue.

On the afternoon of January 23, 1991, Board of Healing Arts Inspector Kistler became convinced that the nurse was delivering a baby at the clinic, and thereby practicing medicine without a license. ² Kistler contacted Deputy Sheriff Popplewell about the possibility of an investigation or a search. As a result, a reserve deputy was sent to the clinic that evening at 10 P.M. The couple, their toddler, and their four-hour old newborn were the only occupants at the time the deputy knocked on the door. The deputy told the family that he was a soldier on his way to the Gulf War. He claimed to be having car trouble, so the family admitted him to telephone for help. In reality, he was telephoning waiting officers to inform them that the Country Cradle was occupied by a family with a newborn infant.

At approximately 11:00 P.M., Investigator Kistler and Deputy Sheriff Popplewell went to the home of Miller County Assistant Prosecuting Attorney Marmion to discuss the advisability of procuring a search warrant. ³ Marmion prepared the application for a warrant and the accompanying affidavit. The affidavit was not only conclusory in nature, ⁴ it also neglected to inform the magistrate that the "confidential informant" with information of a birth was an off-duty deputy impersonating a United States serviceman on his way to war and that a family with an hours-old newborn was occupying the clinic. The magistrate issued the warrant at approximately 1:00 A.M., and authorized a search for "video tapes, medical records, medical supplies, financial records, video equipment, medications or narcotics, sheets, [and] medical textbooks" being kept at the Country Cradle. Joint Appendix at 314.

At 2:00 A.M. four uniformed and armed officers, two prosecuting attorneys, and the inspector raided the Country Cradle. ⁵ The officers entered after knocking and awakening Jones. They refused his request to return later in the morning. Jones was ordered to sit on the waiting room couch and was questioned. Several others of the search party went into the separate bedroom where the pajama clad Hummel-Jones was attempting to nurse her newborn son, and began to question her. The couple declined to identify themselves. The searchers seized the couple and restricted them to the waiting room couch while the search was conducted. Whenever Hummel-Jones left the couch, an officer accompanied her. Inspector Kistler photographed the family as "evidence." Kistler also photographed Hummel-Jones's lingerie soaking in the bathroom sink. Popplewell searched Hummel-Jones's overnight bag against her wishes. The searchers seized one of the family's banking slips to establish their identity. ⁶ The searchers also seized the couple's personal video-tape of Hummel-Jones's afterbirth experience, despite the couple's objections. The search lasted for three and a half hours, or, essentially throughout the night. The searchers permitted the family to use the bathroom and telephone, and Hummel-Jones was allowed to nurse her infant.

Afterwards, the couple filed this section 1983 action seeking actual and punitive damages against the defendants. The district court granted summary judgment to all the named defendants. The couple appeals the district court's finding that Sheriff Strope, Deputy Sheriff Popplewell, Inspector Kistler, and Assistant Prosecuting Attorney Marmion (the appellees) did not violate their Fourth and Fourteenth Amendment rights by conducting the search in an unreasonable manner, by exceeding the scope of the warrant, and by unlawfully seizing them. ⁷ They also appeal the district court's finding that qualified immunity shields the appellees from liability even if their actions were unlawful.

II. DISCUSSION

We review grants of summary judgment de novo. United States ex rel. Glass v. Medtronic, Inc., 957 F.2d 605, 607 (8th Cir.1992). The question is whether the record, when viewed in the light most favorable to the nonmoving party, here the appellants, establishes that there is no genuine controversy as to any material fact and that the moving party is entitled to judgment as a matter of law. Id.

A. Reasonableness of the Raid

Although how best to proceed in performing a search is generally left to the discretion of officers executing a warrant, possession of a search warrant does not give the executing officers a license to proceed in whatever manner suits their fancy. Dalia v. United States, 441 U.S. 238, 257-58, 99 S.Ct. 1682, 1693-94, 60 L.Ed.2d 177 (1979). The manner in which a warrant is executed is always subject to judicial review to ensure that it does not traverse the general Fourth Amendment proscription against unreasonableness. Id.; see also Zurcher v. Stanford Daily, 436 U.S. 547, 559-60, 98 S.Ct. 1970, 1978-79, 56 L.Ed.2d 525 (1978) (possession of a warrant and probable cause does not immunize how and when searches are executed from review for Fourth Amendment reasonableness); accord Ybarra v. Illinois, 444 U.S. 85, 101-05, 100 S.Ct. 338, 347-50, 62 L.Ed.2d 238 (1979) (Rehnquist, J., dissenting); Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374 (1931). The "when" and "how" of otherwise legitimate law enforcement actions may always render such actions unreasonable. Zurcher, 436 U.S. at 559-60, 98 S.Ct. at 1978-79; see also Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 1699-1700, 85 L.Ed.2d 1 (1985) (the Court examines the reasonableness of the manner in which a search or seizure is conducted by balancing extent of intrusion against need for it). Taking the facts in the light most favorable to the appellants, we have no doubt that this search exceeded all bounds of reasonableness.

The intrusion here was extreme and deliberate. The couple and their newborn were rousted out of bed at 2 A.M.; they and Hummel-Jones's lingerie were photographed as "evidence;" the searchers were armed, hostile, and arrogant; the searchers directed the couple to the couch, demanded that they stay there, searched Hummel-Jones's personal bag over her protests, and ordered Jones to "control" his wife. The searchers further seized the couple's personal documents when the couple refused to identify themselves. The searchers stayed and kept the family on the couch until after 5 A.M., or for most of the night, ignoring any risk to Hummel-Jones's health due to the inevitable trauma of such an invasion only hours after delivery.

The primary justification the appellees put forth for performing this search of a well-established and openly-operating birthing clinic at 2:00 A.M. was to ensure that the mother and newborn would be present. Otherwise, we are told, items of evidence, to wit, the mother, newborn, and bloody sheets, might have been lost. Mothers and newborns at a birthing clinic are not "items of evidence." And, neither the warrant nor the warrant application mention either a mother or a newborn when particularly describing the "items" to be searched for and seized. In any case, the mother and newborn were not going to disappear. At worst, they were going to go home. Photographing the mother and her newborn on the clinic premises could not help establish whether or not there was unlicensed practice of medicine occurring at the clinic because it is not illegal to give birth wherever one happens to be when the moment arrives. Nor were the bloody sheets and lingerie attendant to a birth evidence of any illegality.

The appellees also argue that the search was reasonable because they had a warrant. Thus, the balance between the couple's privacy and the state's law enforcement interests had already been weighed by a neutral and detached magistrate, with the balance having been determined to be in the state's favor. First, as noted, possession of a warrant does not insulate the manner in which searches are executed from review for reasonableness. Dalia, 441 U.S. at 257-58, 99 S.Ct. at 1693-94. Therefore, the existence of a warrant is not determinative. Second, the application for the warrant made no mention of the family's presence at the birthing clinic, even...