Turk v. Comerford, 11-3682
| Decision Date | 17 July 2012 |
| Docket Number | No. 11-3682,11-3682 |
| Parties | JAMES TURK; MARY BETH TURK, individually and as mother of WKT and KMT, minors, Plaintiffs-Appellants, v. DANIEL COMERFORD; JASON STASENKO; NICK REXING; MARK ADAMS, individually and in his official capacity with the other Cuyahoga County Sheriff's Office, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0771n.06
On Appeal from the United States
District Court for the Northern District of Ohio
Before: BOGGS, NORRIS, and KETHLEDGE, Circuit Judges.
BOGGS, Circuit Judge. James and Mary Beth Turk appeal two district-court decisions granting qualified immunity to officers from an FBI task force who entered and searched their home. The officers were looking for fugitive John Mattice. Four days earlier, Turk1 had accompanied Mattice to the scene of a sexual assault that Mattice allegedly committed. According to the Turks' complaint and evidence, the officers surrounded the Turks' home without any indication that Mattice was with Turk, pushed through his door as he turned the deadbolt, and searched his house, threatening him with jail time all the while. The Turks filed this § 1983 suit, alleging that the officers violated their Fourth Amendment rights. Over the course of two summary-judgment motions, decided by different judges, the district court held that all of the officers were entitled to qualified immunity on all of the Turks' claims. For reasons discussed below, we affirm the decisions granting qualified immunity to an officer who was not present during the initial entry and remained with Turk during the subsequent search, and to all officers on the Turks' claim that the officers violated their Fourth Amendment rights by entering the curtilage of their home. However, we reverse the decisions granting qualified immunity on the Turks' illegal-entry, illegal-search, and illegal-detention claims, and remand for further proceedings consistent with this opinion.
Taken in the light most favorable to the Turks, the facts are as follows. On Friday, February 13, 2009, former police officer James Turk met John Mattice at the intersection of Interstate 480 and Ridge Road in Cleveland, Ohio. Unbeknownst to Turk,2 who was working as a private investigator for attorney Ed Heffernan, Cleveland Police had arrested Mattice for rape in October 2008. Worse, because Mattice missed a scheduled court appearance, a bench warrant for his arrest had been issued. Turk went with Mattice to 3900 Fulton Court, the scene of the alleged crime, and spoke with a tenant named Emily.3 On request, he gave Emily one business card with his name, and another with both his and Heffernan's. He then asked for, and received, permission to take a photograph of the couch where the incident took place and left. The entire visit, according to Turk, took approximately ninetyseconds. After leaving the scene of the alleged crime, Turk dropped Mattice off in the same place that he had picked him up earlier and proceeded to Akron on other business.
The Cleveland/Cuyahoga Fugitive/Gang Task Force (Task Force), a group of officers from various law-enforcement agencies, deputized as federal agents by the FBI, began searching for Mattice when he failed to appear in court "[o]n or about February 10, 2009." Because the alleged rape occurred at 3900 Fulton Court, and 3900 Fulton Court was the address listed on Mattice's arrest warrant, Task Force Officers Jason Stasenko and Mark Adams began their search at 3900 Fulton Court. They learned that Mattice no longer lived at that address, but got Emily's contact information from a current resident. Emily and Stasenko spoke several times over the next three days. "[A]t one point [Emily] indicated that Mattice had grown suspicious that she was helping the police, that she feared for her safety, and that she no longer believed she could assist [the Task Force] in locating Mattice." On February 13, Emily called Stasenko, sounding "panicky . . . scared and intimidated." She told Stasenko that Turk and Mattice had come to 3900 Fulton Court while she was there, that "Turk was pushy, [and] pushed his way into the house," and that the two men left together in the same car.4 Stasenko ran Turk's name through a number of databases. He learned Turk's home address and that Turk had been found not guilty of Intimidation in the Cuyahoga County Common Pleas Court.
On the morning of Tuesday, February 17, Turk's son was getting ready for school when he saw a man with a cap, dark clothing, and a gun outside of his window. He told his father that hethought there was a terrorist in the backyard. Turk told his son to get behind him, and walked toward his daughter's room. Through his front window, Turk saw cars and men in hats "all over the place." Before he could reach his daughter, someone "pounded on the door . . . screaming out pounding on the windows saying, Mr. Turk, you're fucking going to jail right now, you're going to jail, open the door." In response to Turk's asking what was going on, the officer responded: "Open this door right now, you're going to jail." Task Force officers, Turk claimed, were "banging on the front door with something, a lead pipe, flashlight, [so hard that] things were shaking all over the place."
Because "the window on the front door [was] shaking," Turk "went to open the door." The front door of Turk's house is a double door. Only the left-hand door opens—the right-hand door "is a dummy door."5 The Task Force officers, however, did not know this and, as Turk "went to open the [left-hand] door . . . [the officers] tried to force" the right-hand door. Turk began to turn the deadbolt, but "didn't get it all the way because . . . somebody shoved the door open in [his] face." Indeed, Turk claims, the door splintered because Stasenko forced it open.
Turk's wife, Mary Beth, corroborated her husband's account, claiming that "the person outside the door was yelling open up, open up," and that "[w]hen [Turk] went to unlatch the deadbolt he never turned to open, or maybe it was pushed." She also insisted that she "never opened the front door," that "[a]s . . . Turk was manipulating the deadbolt to the front door . . . law enforcement simply barged/pushed into the foyer area of our home," and that she said nothing to any Task Force officer until the officers had entered her home. Stasenko, by contrast, claims that, after he knockedon the door and identified himself as a police officer,
It is undisputed that Stasenko entered the home first, followed by Officer Mark Adams and Officer William Chapman.6 Next came Officer Daniel Comerford, who had been in the Turks' backyard "covering" the back of the house "in the event the fugitive was present and tried to escape." Comerford came inside only after Stasenko, already inside the house, called him on the radio. Officer Nick Rexing, who had been at the side of, and then behind, the house, entered eventually.7 Precisely when he came inside, however, is in dispute: Turk claims that he entered with Stasenko and Adams,8 Rexing claims that he entered later. Although the officers did have a warrant for Mattice's arrest, they did not have a search warrant for Turk's home.
Turk captured most of what followed on a recording device hidden in his underwear.9 Initially, Turk believed that the officers were associated with city animal control because Stasenko wore a vest with the initials "APA."10 Thus, when Stasenko told Turk to put his German Shepherdaway, Turk responded: "Oh, I thought you said you were here for the dog." Mrs. Turk then said: Immediately, Turk interjected: Ibid. The following conversation ensued:11
Stasenko grabbed Turk's wrist and kept him in the foyer area, while other officers "spoke to [Mrs. Turk] . . . about searching the house." Turk, at this point, asked his wife to get Heffernan's phone number. She did so, and Turk spoke to Heffernan on the phone. Heffernan told him that, unless the officers produced an arrest warrant, they would have to leave. Turk then gave the phone to Stasenko,who told Heffernan: Stasenko continued:
Sir, all right, I'm just - - I'm doing a courtesy of talking to you. We have a warrant for [Mattice's] arrest, okay. If he turns himself in today, great. All right. We don't have to bother anymore [sic] people. Your client was with him on Friday, okay. That's why we're here. We have information - - listen. We have information from other sources that he was with him, okay. This gives us enough to come out here and talk to him, okay. If he didn't tell us a lot of stuff that we already know he was going to...
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