Specht v. Jensen, Nos. 85-1457

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before McKAY, SETH, and SEYMOUR; SEYMOUR
• Citation: 832 F.2d 1516
• Parties: 24 Fed. R. Evid. Serv. 124 O. George SPECHT, Jr. and June B. Specht, Plaintiffs-Appellees, v. Roger JENSEN, Doug Martin, and Don Owens, Defendants-Appellants, Pat Tellier and Ken Jacobs, Defendants. O. George SPECHT, Jr. and June B. Specht, Plaintiffs-Appellants, v. Roger JENSEN, Pat Tellier, Doug Martin, Don Owens and Ken Jacobs, Defendants- Appellees.
• Decision Date: 10 November 1987
• Docket Number: Nos. 85-1457,85-1533

Page 1516

832 F.2d 1516 24 Fed. R. Evid. Serv. 124 O. George SPECHT, Jr. and June B. Specht, Plaintiffs-Appellees,
v.
Roger JENSEN, Doug Martin, and Don Owens, Defendants-Appellants,
Pat Tellier and Ken Jacobs, Defendants.
O. George SPECHT, Jr. and June B. Specht, Plaintiffs-Appellants,
v.
Roger JENSEN, Pat Tellier, Doug Martin, Don Owens and Ken
Jacobs, Defendants- Appellees. Nos. 85-1457, 85-1533. United States Court of Appeals,
Tenth Circuit. Nov. 10, 1987.
Rehearing en banc granted in part and judgment, but not
opinion, vacated Feb. 4, 1988.

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Theodore S. Halaby and Robert M. Liechty, of Halaby & McCrea, Denver, Colo., for defendants Jensen, Martin and Owens.

Arthur H. Bosworth, II (Michael J. Peterson with him on the brief), of Bosworth & Slivka, Denver, Colo., for plaintiffs.

Before McKAY, SETH, and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

George and June Specht, husband and wife, brought this action against Roger Jensen, Dan Owens, and Doug Martin, three members of the Steamboat Springs, Colorado, Police Department. ¹ The Spechts asserted claims under 42 U.S.C. Sec. 1983 (1982) and Colorado law arising from the alleged unlawful search of the Specht home and George Specht's office. A jury found in favor of the Spechts, awarding Mr. Specht $151,250 in compensatory damages against Jensen, Owens, and Martin, and awarding Mrs. Specht $76,250 in compensatory damages against Jensen and Owens and $7,500 in punitive damages against Owens. ² Defendants appeal, asserting that 1) the district court erred in denying their various motions for judgment notwithstanding the verdict; 2) the trial

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court committed reversible error in its evidentiary rulings; and 3) the trial court erred in denying their motions for a new trial or a remittitur because the jury verdict is excessive. We affirm. ³

I.

JUDGMENT NOTWITHSTANDING THE VERDICT

All three defendants moved for j.n.o.v., contending they were entitled to judgment as a matter of law on the state tort claims and the asserted constitutional violations, as well as on the issues of qualified immunity and punitive damages. Upon review of the grant or denial of a motion for j.n.o.v., we must view the evidence and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. Western Plains Service Corp. v. Ponderosa Development Corp., 769 F.2d 654, 656 (10th Cir.1985). In so doing, we may not weigh the evidence, pass on the credibility of witnesses, or substitute our judgment for that of the jury. Brown v. McGraw-Edison Co., 736 F.2d 609, 613 (10th Cir.1984). Accordingly, we must view the record in the light most favorable to the Spechts in setting out the facts presented at trial and in assessing individually defendants' motions for j.n.o.v.

The incidents giving rise to this lawsuit involve the attempts of Ken Jacobs, ⁴ a private citizen, to repossess a computer that had previously been repossessed from Jacobs by the Spechts' son Timothy. Jacobs had obtained a state court order of possession and writ of assistance that directed any sheriff to assist Jacobs in obtaining the computer.

The Spechts, who are in their sixties, live in Steamboat Springs. Although Timothy, who was thirty-seven, had not lived with his parents for many years, he had been in business with his father for a time and Jacobs thought the computer might be located at the Spechts' home. Consequently, Jacobs traveled to Steamboat Springs with two friends, Peter Corr and Ken Long. Long, who owned a restaurant, had previously held positions as a law enforcement official. Corr was a Denver police officer on medical leave.

Before the trip, Long called defendant Jensen, a supervisor with the Steamboat Springs police department, whom Long had known for several years. Long told Jensen that a friend had a court order and might need some help executing it. Jacobs, Corr, and Long arrived at the Steamboat Springs police station in the early afternoon of Wednesday, February 24, 1982. Jensen, who was just going off duty, told his replacement, Pat Tellier, "to take care of" the three men. Rec., vol. IV, at 70. Jacobs learned the location of the Specht residence at the police station, and he drove there that afternoon with Corr and Long. They were accompanied by defendant Owens, a Steamboat Springs police officer, at Tellier's direction. No one was home and they returned to the police station.

Jacobs then obtained the location of George Specht's business office. He, Corr, and Long drove to the office, found no one there, and went back to the police station again. Sometime early that evening, Tellier said he knew the person who owned the building in which Mr. Specht's office was located. Tellier called the daughter of the owner, Dorinda Wheeler, and told her about the court order. She called her brother, Steve Valdeck. Ms. Wheeler and Mr. Valdeck went to the building that evening and met Corr, Long, and Jacobs, who were accompanied by defendant Martin, another Steamboat Springs police officer, at Tellier's instruction. Martin asked Valdeck if he had brought the key. Valdeck asked if he could see the search warrant and Jacobs handed him the order of possession. Valdeck unlocked the building, and they all

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entered it and went into the reception area that served both George Specht's office and the other building occupant. At least some of the group then went into Mr. Specht's office, the doors of which were closed but not locked, turned on the lights, and looked around. Jacobs used a flashlight to look into the corners. Finding nothing, the men returned to the reception area, looked into a storage closet used by both building occupants, and left.

Early the next morning, Long called the police station and requested a police car to accompany them to the Specht residence. Long, Corr, and Jacobs went to the home and were met there at approximately 7:45 a.m. by defendant Owens and an officer-in-training, Gomez. Before approaching the front door, Owens asked Jacobs what powers the writ provided. Jacobs told him that it gave the same powers as a search warrant.

Owens then knocked on the door and June Specht answered. Owens asked for Mr. Specht, who was out of town on business. Mrs. Specht told Owens that her husband was not home and asked if she could help him. She asked him in, and the other four men came in uninvited. Jacobs stated that he had a search warrant to seize a stolen computer. Owens and Jacobs both told Mrs. Specht that if she obstructed Jacobs or did not cooperate, Owens would arrest her and take her to jail. She and Jacobs entered into a heated exchange while the men began milling around the kitchen, and living and dining areas. Jacobs and Owens told her several times to cooperate or she would go to jail. When Mrs. Specht stated that she wanted to call her lawyer, Owens told her she had no right to do so unless Jacobs said she could. Jacobs then told her she could not. She finally gave them her son's work phone number and the men left. They had been at the home approximately thirty to forty minutes.

A. Unconstitutionality of the Searches

The Spechts sought damages under section 1983, asserting that defendants' conduct violated their Fourth Amendment right to be free from unreasonable searches. Section 1983 applies to persons who both deprive others of a right secured by the Constitution or laws of the United States, and act under color of state law. See Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1428 (10th Cir.1984). Owens and Martin contend that the Spechts failed to present sufficient evidence that a search of the office or the home had occurred. Alternatively, they contend that they did not violate the Specht's constitutional rights because they were at most negligent in relying on the repossession order to conduct the searches.

1. Existence of the Searches.

The court instructed the jury without objection that "a search is a visual observation which infringes upon a person's reasonable expectations of privacy." Rec., vol X, at 921. George Specht testified that he closed his office doors and drapes when he was not there, and that he kept confidential business information on his desk. Assuming as we must that such assertions are true, Mr. Specht indisputably had a reasonable expectation of privacy in his office against police intrusions. O'Connor v. Ortega, --- U.S. ----, 107 S.Ct. 1492, 1498, 94 L.Ed.2d 714 (1987); see Mancusi v. DeForte, 392 U.S. 364, 369, 88 S.Ct. 2120, 2124, 20 L.Ed.2d 1154 (1968). The evidence of the warrantless entry into his office and the activity that occurred there was sufficient to send to the jury the issue of whether this entry and activity constituted a search. Likewise the activity that took place in the Specht home clearly raised a fact issue regarding a visual inspection of that which the Spechts could reasonably have expected to remain private and which they did not voluntarily expose to public view. ⁵

2. Mental State of Officials.

While the instant appeal was pending, the United States Supreme Court held that

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an injury arising from a state agent's negligent actions does not deprive an individual of life, liberty, or property under the Fourteenth Amendment due process clause. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986) ("mere lack of due care by a state official [will not] 'deprive' an individual of life, liberty or property under the Fourteenth Amendment"); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986) (same). In these cases, the Court adopted the position recognized by this circuit at least since Hewitt v. City of Truth or Consequences, 758 F.2d 1375, 1379-80 (10th Cir.1985), that a state official's negligence does not invariably rise to the level of an abuse of power necessary to give rise to a due process violation. Defendants argue here that their negligence in relying on the repossession order cannot violate the...