Norton v. Turner

• Decision Date: 26 January 1977
• Docket Number: Civ. A. No. 76-3-A.
• Parties: Elizabeth Ann NORTON, Plaintiff, v. John TURNER et al., Defendants.
• Court: U.S. District Court — Virgin Islands

427 F. Supp. 138

Elizabeth Ann NORTON, Plaintiff, v. John TURNER et al., Defendants.

Civ. A. No. 76-3-A.

United States District Court, E. D. Virginia, Alexandria Division.

January 26, 1977.

COPYRIGHT MATERIAL OMITTED

Phil J. Hirschkop, Alexandria, Va., for plaintiff.

James R. Hubbard, Asst. U.S. Atty., Alexandria, Va., Joseph P. Dyer, Arlington, Va., Plato C. Cacheris, Alexandria, Va., Brian P. Gettings, Arlington, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Plaintiff, Elizabeth Ann Norton, brings this action against certain federal and local law enforcement officers and the United States of America to redress an alleged wrongful entry and search of her apartment. The plaintiff seeks both monetary and declaratory relief. The action is brought pursuant to the Constitution of the United States, 42 U.S.C. § 1983 and state law. Jurisdiction is attained pursuant to 28 U.S.C. §§ 1331, 1332, 1343 and 1346(b). The matter comes before the Court on cross-motions for summary judgment as to liability.

The gravaman of the plaintiff's complaint is the contention that her apartment was illegally entered by the individual defendants in violation of her rights under the Fourth Amendment to the Constitution. Her constitutional claims are premised upon Bivens v. Six Unknown, etc., Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the provisions of 42 U.S.C. § 1983. Pendent state common law claims of assault, trespass, and false imprisonment are also asserted. The United States of America is sued under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2674, and 2680(h).¹ The defendants contend that their actions were legal under the Fourth Amendment and the common law. Secondarily, they maintain that they acted under a reasonable good faith belief in the legality of their actions and, therefore, are immune from suit. See Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Bivens v. Six Unknown, etc., Agents, 456 F.2d 1339 (2d Cir. 1972); Hill v. Rowland, 474 F.2d 1374, 1377 (4th Cir. 1973). Plaintiff's contentions are that the alleged entry was illegal, that the claims of immunity of the individual agents are not ripe for decision under the instant motions, and that the immunity defense, if any, is not available to the United States.

I. The Facts

The parties have stipulated many of the material facts. At approximately 8:13 p. m. on Saturday, March 15, 1975, Officer Donald C. Green of the Alexandria, Virginia Police Department received an anonymous telephone call regarding the whereabouts of Patricia Campbell Hearst, then a nationally renowned fugitive. William and Emily Harris were also being sought on related matters. Officer Green immediately advised Agent Mackey of the Federal Bureau of Investigation's Alexandria field office of the call and relayed the conversation as follows:

"You know Patty Hearst is supposed to be in Pennsylvania but she's not. She's currently at 649 Notabene Drive, Apartment 10, in Alexandria and she's been there for the last week or ten days. She has cut her hair and she's with one of the people who left with her from California."

Agent Mackey thereupon advised Special Agent-in-Charge, Robert Kunkel, who directed that the investigation of the anonymous tip be headed by Special Agent Robert O'Brien. Special Agent O'Brien was the Coordinator for the Alexandria Division for the nationwide search for Miss Hearst and other allegedly connected fugitives. The Hearst investigation was code named HEARNAP by the FBI. Upon being contacted and advised of the tip, Special Agent O'Brien took charge of the investigation. He and three other FBI agents proceeded to the Alexandria Police Department headquarters. It should be noted that the HEARNAP file contained at that time, in part, the following information: (1) the fugitives generally resided in low income areas; (2) their general mode of transportation was either rental cars or used vans; and (3) Ms. Hearst had reportedly cut her hair in September of 1974.

Upon arriving at the Alexandria Police Department, it was determined through the use of locator crisscross indexes published by the telephone company, that the referred to apartment was occupied by one Victor Henry Evol, but no telephone number could be located. A check of police department records revealed that Mr. Evol was a black male who had been interviewed on July 23, 1974 by Alexandria police officers in connection with a complaint involving a concealed weapon. The information attained revealed that no charges had been brought against Mr. Evol.

Stipulated facts reveal that on March 15, 1975, Evol was not the tenant of the apartment. Plaintiff had leased the apartment on November 1, 1974 shortly after Mr. Evol had vacated the premises. On March 12, 1975, three days prior to the incident in issue, Ms. Norton, the plaintiff, was interviewed at her apartment by a local FBI agent, Larry Bartlett, in connection with an investigation of a stolen automobile. Agent Bartlett's report concerning this interview was neither dictated nor transcribed until subsequent to the incident involved herein. Accordingly, the FBI's then recent contact with and identification of the occupant of 649 Notabene Drive, Apartment 10, was not contained in the briefing preparatory to the investigation of the Hearst tip.

At approximately 9:30 p. m., March 15, 1975, the four FBI agents and two Alexandria detectives drove to a site close to the apartment in question. They were there joined by two uniformed police officers. Agent O'Brien furnished all the agents and officers with photographs and physical descriptions of the fugitives and advised them that each fugitive had been designated by the FBI as armed and dangerous. One of the Alexandria detectives, Mr. Turner, was then dispatched to survey the building. The apartment building, located in a well lighted low income area, is a separate brick structure containing ten units. The front entrance is the only method of ingress or egress save the windows. Apartment 10 is located on the third floor of the building and has only a rear view. On the night in question, there was no resident manager at the apartments and the name of the occupant of Apartment 10 was not contained on the vestibule mailbox. Parked outside the apartment units was a white van with Pennsylvania license plates.

Upon Detective Turner's return from his survey, the agents and officers proceeded to the apartment. Agent O'Brien at the parking lot briefing advised the officers of three possibilities: (1) the HEARNAP fugitives Hearst, Harris and Harris were in the apartment; (2) the tip was an attempt to set up an ambush; or (3) the tip was an attempt to harass an innocent party. At approximately 10:07 p. m., Agents O'Brien and McLaughlin and Detectives Turner and Bland proceeded to Apartment 10. The light was on and music was being played when the agents arrived. Two minutes later, Agent O'Brien knocked on the door of the apartment. At this time Ms. Norton was at home alone. She was fully dressed. The door to Apartment 10 did not contain a peephole.

Ms. Norton responded to the knock by asking "Who's there" or "Who is it"? Agent O'Brien indicated that it was the FBI. Ms. Norton requested identification. While the details of the ensuing conversation are disputed, the parties agree that the plaintiff never was shown the agents' credentials. The plaintiff turned to call FBI offices in an effort to secure some verification that the men at the door were, in fact, agents. The agents and detectives then attempted to forcibly open the door by striking it. Ms. Norton, fearing that the door would be destroyed, unlatched the lock and the door sprang inwardly open. The law enforcement officers entered the apartment with weapons drawn. A search of the apartment revealed no traces of the sought after fugitives.

Agent O'Brien then advised the plaintiff of the call which prompted the intrusion. It has subsequently been determined that the "tip" was probably made by a neighbor of the plaintiff with whom Ms. Norton frequently quarreled. No attempt was made by the defendants to obtain a search warrant prior to the forced entry.

II. The Legality of the Defendants' Conduct

With respect to the alleged constitutional torts, the threshold issue presented is whether or not the defendants' actions were violative of the Fourth Amendment's prohibition against unreasonable searches and seizures. In the context of the instant controversy, the issue is framed in terms of the standards applicable to the execution of an arrest warrant at the residence of a third party not named in the warrant. The Supreme Court, to date, has not directly confronted the issue. See United States v. Watson, 423 U.S. 411, 418 n.6, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Gernstein v. Pugh, 420 U.S. 103, 113 n.13, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Coolidge v. New Hampshire, 403 U.S. 443, 480-481, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). It is clear, however, that "if the police intended to conduct a search of a man's home for a suspect, they must at least have probable cause to believe that he is on the premises." Lankford v. Gelston, 364 F.2d 197, 202-203 (4th Cir. 1966) (emphasis added). See also United States v. James, 528 F.2d 999, 1017 (5th Cir. 1976); United States v. Brown, 151 U.S. App.D.C. 365, 467 F.2d 419, 423 (1972); United States v. McKinney, 379 F.2d 259, 262-263 (6th Cir. 1967).² Accordingly, the pivotal inquiry is the existence of probable cause that Ms. Hearst occupied Apartment 10 at the time the agents forcibly entered the apartment. To paraphrase an oft quoted definition of probable cause, this Court must determine whether, at the moment of the entry, the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in...