Smith v. Heath

• Decision Date: 29 September 1982
• Docket Number: No. 80-5415,80-5415
• Citation: 691 F.2d 220
• Parties: Fletcher Altman SMITH, and Marguerite Elizabeth Smith, Plaintiffs-Appellees, v. Don HEATH, Defendant, and Jack Rohtert, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 220

691 F.2d 220

Fletcher Altman SMITH, and Marguerite Elizabeth Smith Plaintiffs-Appellees, v. Don HEATH, Defendant and Jack Rohtert, Defendant-Appellant.

No. 80-5415.

United States Court of Appeals Sixth Circuit.

Argued Jan. 28, 1982.

Decided Sept. 29, 1982.

Peter H. Curry, William Howard (argued), Nashville, Tenn., for defendant-appellant.

George C. Paine, II, Keith M. Lundin (argued), Daniel C. Kaufman, Waddey & Newport, Nashville, Tenn., for plaintiffs-appellees.

Before MARTIN, Circuit Judge, WEICK, Senior Circuit Judge, and HILLMAN, District Judge. ^*

HILLMAN, District Judge.

Jack Rohtert, a homicide detective with the Nashville and Davidson County (Tennessee) Metropolitan Police, appeals a judgment against him in the amount of $39,524.95 for willfully violating the constitutional rights of Fletcher Altman Smith (Smith) and Marguerite Elizabeth Smith (M. E. Smith). (Although sharing the same last name, Smith and M. E. Smith are not related.)

On May 24, 1975, Smith committed a minor traffic offense in front of his motel in Nashville. Officer Don Heath, a co-defendant, followed Smith into the motel driveway where Smith parked his van and went into his motel apartment, closing the door behind him. This door to his apartment had a large sign on it marked "Private Keep Out." Nevertheless, Heath pursued Smith and kicked that door open to force his way inside. M. E. Smith was sitting at the kitchen table knitting. Her granddaughter was asleep in the bedroom. Heath entered the kitchen with his gun drawn, and without explanation, walked through the kitchen to the bedroom which Smith had entered. Heath opened the bedroom door and fired repeatedly at Smith.

Predictably, Smith was gravely wounded by Heath's attack. M. E. Smith called an ambulance. Other police officers soon arrived.

Meanwhile, Officer Rohtert drove to the motel after receiving a call on his car radio about the shooting incident and possible homicide. When he arrived, he found the door open with the other officers inside. By his own admission, he was the officer in charge of the investigation. He ordered M. E. Smith into a back room, telling her to stay there but neither inquiring as to her knowledge of the events or explaining their presence and actions. Then, he directed the other officers to seize evidence, not limiting their search in any way. With no apparent justification, Smith's van was impounded and taken away. In the words of the district judge, "in an effort to find some evidence to mitigate the impact of those unconstitutional acts (Heath's entry and shooting), the defendant Rohtert and his subordinates engaged in an unconstitutional orgy of unique proportions. They were not performing routine nor normal police procedures." Although the police ransacked the apartment, no evidence of illegal acts or activity was uncovered.

No claim is made that Rohtert obtained permission to either enter or search the Smith apartment. Likewise he did not obtain a warrant.

After Smith had been transported to a hospital, Rohtert ordered an officer to take M. E. Smith to police headquarters to obtain a statement, while the other officers remained behind and continued their search. She was kept at the station for over five hours. While at the station, she asked to leave, but was refused permission. No one told her that she was free to go if she wanted. She was given no Miranda warnings. Some friends came to speak with her, but she was not allowed to see them. A statement was taken from her, but no copy was given to her. She was not allowed to go to the bathroom unaccompanied. She was released between 6:00 a.m. and 7:00 a.m.

Since that time, she has been nervous and unable to sleep. At the time of the trial, she was still under the care of a medical doctor and taking tranquilizers for her nervous condition.

Smith survived the attack. He and M. E. Smith brought this action against Heath and Rohtert under 42 U.S.C. section 1983, alleging that these police officers had willfully violated their Fourth Amendment rights by conducting an illegal search and seizure of Smith's apartment, and by making an illegal arrest and detention of M. E. Smith. Following a bench trial, the district judge found both defendants individually liable on the 1983 claims. However, only Rohtert appeals that decision.

Rohtert was ordered to compensate Smith as follows: compensatory damages of $5,000 for the unconstitutional search and seizure, $450 for three "lost" guns and punitive damages of $5,000, totalling $10,450. In addition, Rohtert was ordered to pay M. E. Smith: compensatory damages of $5,000 for her unconstitutional arrest and detention, $5,000 for her ensuing nervous condition and punitive damages of $2,500, totalling $12,500. The district judge also assessed Rohtert's portion of the attorney fees and costs at $16,574.95. In all, Rohtert was ordered to pay $39,524.95.

On appeal Rohtert alleges error in the findings of fact, the conclusions of law, and the awards of compensatory damages, punitive damages and attorney fees and costs.

I. LIABILITY

The first issue of this appeal is whether Rohtert violated the civil rights of Smith by searching his apartment and by his conduct towards M. E. Smith. The court will first address the issue of Rohtert's liability to M. E. Smith (referred to in the record and by the district judge as "Grandma").

The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ..." The requirement that searches and seizures be based on some objective justification, governs all seizures "... a person is 'seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained....

of the person, "including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-78, 20 L.Ed.2d 889 (1968)." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). Of course, not all contacts between police officers and citizens amount to seizures. The Supreme Court in United States v. Mendenhall, 446 U.S. 544, 553-554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) stated:

We conclude that a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. ⁶

The test, therefore, in determining whether a seizure has or has not occurred is under all the circumstances what a reasonable citizen, innocent of crime, would have thought. United States v. Beck, 598 F.2d 497 (9th Cir. 1979).

In a situation such as this, some relevant factors to consider are: (1) whether the officers gave the individual the option of accompanying them to the station; (2) whether the individual was specifically told he/she was not under arrest; and (3) whether the individual consented to go to the police station. See, e.g., Bridges v. United States, 392 A.2d 1053 (D.C.App.1978), cert. denied, 440 U.S. 938, 99 S.Ct. 1286, 59 L.Ed.2d 498 (1979).

In bench trials, the scope of appellate review is limited to determining whether the findings made by the trial court are clearly erroneous. Fed.R.Civ.P. 52. The function of this court is not to decide the case de novo. We cannot substitute our judgment for that of the district judge merely because we might give the facts another construction, resolve the ambiguities differently or generally view the facts differently. See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); United States v. National Ass'n of Real Estate Bds., 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007 (1950); Shimman v. Frank, 625 F.2d 80 (6th Cir. 1980), rehearing denied 633 F.2d 468 (6th Cir. 1980). The major rationale of this rule of law is that the trier of fact has the opportunity to view the witnesses, to observe their demeanor and to hear what was said in light of how it was said and in light of the totality of the proceedings. Lydle v. United States, 635 F.2d 763, 765, n. 1 (6th Cir. 1981).

Here, the district judge found from the evidence:

"He (Rohtert) caused the plaintiff Marguerite Betty Smith, Grandma, to be taken into custody.... Grandma was taken to the police station where she was detained for several hours to give a statement covering the events of the night."

M. E. Smith was never told she was not under arrest. To the contrary, she was led to believe that she was. She was not allowed to see friends. She was not allowed to leave or to go to the bathroom unattended. Reasonable people in a similar situation could well conclude that they were not free to leave. The finding by the district judge that M. E. Smith had been unlawfully arrested and detained is amply supported by the record.

Turning to the issue of Rohtert's liability to Smith for the entry into and search of his apartment and the seizure of evidence, the facts of this case also support the conclusion that these acts were unconstitutional.

The Fourth Amendment requires a warrant for the police to search an apartment. However, searches may be conducted under special circumstances without a warrant.

Examples of such circumstances include when police are responding to an emergency; when they are in hot pursuit of a fleeing felon; when evidence is in the process of being destroyed; when evidence is about to be removed from the jurisdiction; when it is impracticable for the police to obtain a warrant; or, if incident to an arrest, when the search is confined to the immediate vicinity of the arrest. Vale v. Louisiana, 399 U.S. 30, 33-35, 90 S.Ct. 1969, 1971-72, 26 L.Ed.2d 409 (1970).

The United States Supreme Court recently dealt with very similar facts in Mincey v....