Hunsberger v. Wood

• Citation: 564 F.Supp.2d 559
• Decision Date: 03 July 2008
• Docket Number: Case No. 7:07CV00087.
• Parties: Mark J. HUNSBERGER and Cheryl A. Hunsberger, Plaintiffs, v. J.A. WOOD and William W. Blessard, Defendants.
• Court: U.S. District Court — Western District of Virginia

564 F.Supp.2d 559

Mark J. HUNSBERGER and Cheryl A. Hunsberger, Plaintiffs, v. J.A. WOOD and William W. Blessard, Defendants.

Case No. 7:07CV00087.

United States District Court, W.D. Virginia, Roanoke Division.

July 3, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Terry Neill Grimes, Melvin E. Williams, Terry N. Grimes PC, Roanoke, VA, for Plaintiffs.

Elizabeth Kay Dillon, Guynn Memmer & Dillon, PC, Salem, VA Katherine Cabell Londos, Phillip Verne Anderson, Frith Anderson & Peake PC, Roanoke, VA, for Defendants.

MEMORANDUM OPINION

SAMUEL G. WILSON, District Judge.

This is an action for damages by plaintiffs Mark and Cheryl Hunsberger against defendants William W. Blessard and Botetourt County, Virginia Deputy Sheriff J.A. Wood arising out of their warrantless entry into the Hunsbergers' home. Plaintiffs assert three claims: a Fourth Amendment claim, pursuant to 42 U.S.C. § 1983; an unreasonable search and seizure claim, pursuant to Virginia Code § 19.2-59, against Wood only; and a trespass claim, pursuant to Virginia law. The matter is before the court on cross-motions for summary judgment. The Hunsbergers maintain that defendants' warrantless entry into their home violated the Fourth Amendment and state law. Wood maintains that his entry into the Hunsbergers' home was reasonable under the Fourth Amendment and permissible under state law because he entered pursuant to the "caretaker" and "emergency" doctrines and that, in any event, he transgressed no bright constitutional line and is entitled to qualified immunity as to the Hunsbergers' § 1983 claim. Blessard maintains that he was not a state actor subject to liability under § 1983, that he is not liable under § 1983 because he acted in good faith, and that he is not liable for punitive damages as to the trespass claim. The court finds that, in the light most favorable to the Hunsbergers, there was not an apparent emergency justifying Wood's warrantless entry into the Hunsbergers' home under the emergency or caretaker doctrines. The court denies the Hunsbergers' and Wood's cross-motions for summary judgment. However, the court also finds that, even in the light most favorable to the Hunsbergers, Blessard entered their home in good faith and is not subject to liability under § 1983. Accordingly, the court will grant Blessard's motion for summary judgment on that claim. Previously, the court held that Blessard is not subject to liability under § 19.2-59 as a matter of law and therefore dismissed that claim. This leaves only a purely state law trespass claim against Blessard. Although the court is constrained to deny Blessard's motion for summary judgment as to this claim, it finds that he is not liable for punitive damages as to the trespass claim.

I

For the purposes of resolving Wood's and Blessard's motions for summary judgment the court recites these facts in the light most favorable to the Hunsbergers.

Just after ten o'clock on the night of February 2, 2007, Sergeant J.A. Wood and Deputy Jody Edwards of the Botetourt County Sheriffs Office received a call from the dispatcher reporting a calf from Charlene Klik, a neighbor of Mark and Cheryl Hunsberger, complaining of cars coming and going from the Hunsbergers' house, kids being dropped off, and loud noise. Wood understood that Klik did not know if the homeowners or parents were home and that Klik did not know what was going on, but that Klik believed that noise from the house was upsetting her dogs and that the cars parked at the house did not belong there. (Wood Dep. 92.) The officers parked outside of the house where they found two cars parked alongside the road in front of the house, the house lights on, no noise, and nothing at the scene that substantiated Klik's complaint of noise or suspicious activity. The two officers left approximately five minutes after arriving.

Two hours later, after midnight, the officers returned to the house because Klik had called again reporting further activity and noise. Edwards went to speak with Klik who repeated her complaint and stated that she was worried about the homeowners being gone. Again, Wood observed that the lights in the Hunsbergers' house were on but he heard no noise. Wood observed a young man enter the garage from the house, turn the garage light on, then shortly after, return to the house, turning the garage light off again. Wood also observed three cars parked alongside the road in front of the house, two cars parked with two tires on the grass but one parked with its rear end farther out in the road than the other cars. The only difference at the scene from Wood's previous visit was one additional car parked outside the house.

When Edwards returned from talking with Klik, Wood told Edwards that they would go up to the house, "talk to the folks that are there, [and] get them to move the cars off of the street." (Wood Dep. 100.) Wood also said they would ask them to keep the noise down although he had still not heard any noise. (Wood Dep. 100.) Wood and Edwards pulled their cars into the Hunsbergers' driveway and up to the corner of the house. At that point, the lights in the house went out.

Wood approached the front door of the house while Edwards stood behind him in the front yard. Wood rang the doorbell a few times and waited a minute or so. When no one answered the door, Wood rang the bell continuously, twenty-five or thirty times. (Wood Dep. 107, Matthew Deane Dep. 37, AW¹ Dep. 87.) Wood and Edwards turned and began to walk to their cars when Wood noticed that the walk-in door on the side of the garage, which had been closed when the officers approached minutes before, was now open. Wood entered the garage and surveyed it with his flashlight, saw nothing out of the ordinary and exited. Wood then walked around to the back of the house to make sure that no one was hiding there. Wood observed two vehicles parked behind the garage and a trashbag containing beer cans in the yard.

Wood contacted the dispatcher to run a check on the license plates of the cars parked at the house. He learned that the two cars parked behind the garage belonged to the Hunsbergers. (Wood Dep. 113.) Wood asked the dispatcher to call the owners of any cars that did not belong to the homeowners and connect those calls to his cell phone. Wood spoke with Teresa Cooper and Jennifer Deane, two mothers of teenage boys who were at the house, as well as William Blessard, the stepfather of a teenage girl who was at the house. Wood informed the parents that their vehicles were at the house and parked in the road "a little bit" and asked if they could come and pick up their vehicles. (911 Tr. 15.) Wood informed Cooper that her son was "going to either be drunk or drinking" (911 Tr. 16) and told Deane "I can't get anybody to answer this door. I don't know what's going on here other than I'm pretty sure that everybody in there's going to have had something to drink and their [sic] probably not old enough if I'm right." (911 Tr. 24.)

Blessard arrived at the house before the other parents and Wood informed Blessard that he had received two noise complaints, that he did not think that the parents were home, that he did not know if it was a teenage party or not, and that he was still investigating. Blessard told Wood that his stepdaughter was supposed to be staying with a friend, not at the Hunsbergers' house, but that her car was parked out front and she was not answering her cell phone. While Blessard and the officers were outside the house, two other cars pulled up to the house, people exited those cars and drove off in the cars parked in front of the house. Neither officer stopped anyone who arrived or left in order to ask if those people might clarify the situation.

Wood suggested that he and Blessard approach the house together to see if Blessard could get someone to come to the door so that they could find his stepdaughter. As they approached the house, Wood and Blessard heard a noise in the garage. Wood and Blessard entered the garage through the walk-in door and heard the sound of one or more persons going down into the basement from the garage, then shutting and locking the door. Blessard went down the stairwell and knocked on the locked door, calling for his stepdaughter. Blessard knocked hard enough to loosen the door from the jamb slightly but he received no answer and returned to the garage.

Wood informed Edwards by radio that there was a "second unsecured door" (Wood. Dep. 137) leading into the house but did not use his radio to call for backup or contact deputy Edwards further, even though Wood's radio was switched on during the entire search of the house. Wood entered the main floor of the house through the door from the garage and announced himself. Blessard accompanied Wood either beside or just behind Wood. Wood did not tell Blessard to stay back or exit the house while he searched. In fact, the two men said nothing to one another as they entered the main floor.

The two men surveyed the main floor of the house using Wood's flashlight. They saw no one and heard nothing. Wood and Blessard then proceeded downstairs to a basement area (apparently separate from the basement area where Blessard had knocked earlier) where they saw a bar on which sat a beer carton, a few empty beer cans, and a half-full bottle of vodka. The television in that room was on, and the screen was blue as if someone had just turned off a video game. (Blessard Dep. 96-97.)

Wood and Blessard then went back to the main floor of the house, surveyed the rooms again, then went through a hallway and up the stairs to the second floor. Upstairs, Wood entered a bedroom and determined that it was empty while Blessard stood near the doorway. Wood then entered a second bedroom where a dog walked out of a closet. Wood opened the closet and found the Hunsbergers' sixteen-year old son, seated in the closet wearing only his boxer shorts. Wood asked him "where everyone else was" and the...