Wallace v. King, 78-1399

• Decision Date: 01 July 1980
• Docket Number: No. 78-1399,78-1399
• Citation: 626 F.2d 1157
• Parties: Eldred S. WALLACE and Jeannie R. Wallace, John R. DeBiase and Elizabeth C. DeBiase, Appellants, v. Richard A. KING, Chief, Fairfax County Police Department, Robert A. Lawrence, Carla L. Helwig, Ralph W. Gardner, William J. Woodill, Richard H. Reeder, Frank Scott, Appellees. . Re
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1157

626 F.2d 1157

Eldred S. WALLACE and Jeannie R. Wallace, John R. DeBiase and Elizabeth C. DeBiase, Appellants, v. Richard A. KING, Chief, Fairfax County Police Department, Robert A. Lawrence, Carla L. Helwig, Ralph W.

Gardner, William J. Woodill, Richard H.

Reeder, Frank Scott, Appellees.

No. 78-1399.

United States Court of Appeals, Fourth Circuit.

Reargued Oct. 4, 1979.

Decided July 1, 1980.

John McNally, Alexandria, Va. (Murphy, McGettigan, McNally & West; Jonathan Shapiro, Zwerling & Shapiro; Alexandria, Va., Stephen W. Bricker, American Civil Liberties Union of Virginia, Richmond, Va., on brief), for appellants.

Jack B. Stevens, Alexandria, Va. (Howard, Stevens, Lynch, Cake & Howard, P. C., Alexandria, Va., on brief), for appellees.

Before HALL and PHILLIPS, Circuit Judges, and THOMSEN ^*, Senior District Judge.

THOMSEN, Senior District Judge.

Plaintiffs/appellants are two married couples whose residences were briefly searched without search warrants by local police officers seeking to apprehend a woman named in a valid arrest warrant. She was being sought in connection with her refusal to obey a court order in a domestic relations matter involving the custody of her infant child.

Plaintiffs filed suit under 42 U.S.C. § 1983 against the officers who conducted the searches and the chief of the Police Department of Fairfax County, Virginia, seeking money damages as well as declaratory and injunctive relief. They sought to have the district court declare unconstitutional a longstanding, unwritten policy of the department which authorized police officers to search any place without a search warrant when they had a reasonable belief that a person named in an arrest warrant would be found there. Following extensive discovery the district court entered summary judgment for defendants on all claims. Plaintiffs appealed.

After hearing argument in February 1979 and reargument in October 1979, we withheld decision of these appeals pending a decision of the Supreme Court in Payton v. New York and Riddick v. New York, in which probable jurisdiction had been noted on December 11, 1978 (439 U.S. 1044, 99 S.Ct. 718, 58 L.Ed.2d 703, oral argument had been heard and the case set for reargument (441 U.S. 930, 99 S.Ct. 2049, 60 L.Ed.2d 658). The reargument resulted in four opinions filed on April 15, 1980, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639.

Payton involved an entry by the police officers into the home of a person suspected of a felony, when the police had obtained neither an arrest warrant nor a search warrant. The Court held that the Fourth Amendment, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home, in the absence of exigent circumstances, in order to make a routine felony arrest.

I.

This case arises from the unsuccessful attempts of various Fairfax County police officers to execute a bench warrant for the arrest of Susan Wallace Swain, which had been issued in connection with Mrs. Swain's divorce suit as a result of her failure to appear in court with her infant child. Plaintiffs Eldred and Jeannie Wallace are Mrs. Swain's parents and reside in Fairfax County. Plaintiffs John R. and Elizabeth C. DeBiase are friends of the Wallaces who also reside in Fairfax County, some distance away from the Wallace residence.

A. Search of the Wallace Home.

The Wallaces are in their mid-fifties. Mr. Wallace is a long-term civil service employee of the Department of the Army; Mrs. Wallace is a housewife. Mrs. Swain had not lived with the Wallaces for a number of years but occasionally stayed with them when problems arose with her husband.

On October 6, 1976, the Fairfax police received a phone call from Mrs. Swain's estranged husband. He informed them that Mrs. Swain was at her parents' home and, upon meeting two officers at the residence, identified a car parked outside as belonging to his wife. The car was actually licensed in the Wallaces' name.

At approximately 8:30 p. m. Officers Robert Lawrence and Carla Helwig were admitted into the Wallace residence, without demur. Officer Lawrence announced that he wanted to search the home for Mrs. Swain because he had a bench warrant for her arrest and had information indicating that she was on the premises. Mr. Wallace asked the officers if they had a search warrant for his home. One of the officers responded that the arrest warrant itself was sufficient authority for the search.

The search was a walk-through which took only a few minutes. Mrs. Wallace showed Officer Helwig various rooms and closets and, at Officer Helwig's request, opened doors and turned on lights as the two went through the house.

Both officers concede that they had ample time to go to a magistrate and secure a search warrant. They knew that the arrest warrant for Mrs. Swain arose from a domestic relations matter involving the welfare of a young child, but they had not been advised of any urgent or dangerous circumstances requiring immediate arrest.

The parties dispute whether the officers were hostile in conducting the search. The Wallaces claim that the emergency lights on the officers' vehicle were flashing outside during the incident, but the police deny this. ¹ Mr. Wallace claims that his asthmatic condition was aggravated by the search and attendant circumstances, causing him to miss work the following day.

B. Search of the DeBiase Home

About one month after the Wallace home was searched, on November 10, 1976, the Fairfax police were again contacted by Mr. Swain. He telephoned the police station to complain that the department was dilatory in locating his wife and baby. He left a number where he could be reached; Sergeant Frank Scott telephoned the number and talked with a man identifying himself as Mr. Swain.

Swain informed Scott that he had seen his wife enter the DeBiase residence. (The police had previously made inquiry about Mrs. Swain at this residence three days after the Wallace home was searched, but made no attempt to search the DeBiase home at that time.) Sergeant Scott had information on a note from another police officer indicating there was some reason to suspect that Mr. Swain was using the department to harass people in the county. Scott confronted Swain with this allegation and informed him that, if it were true, Scott would seek legal action against him. Swain denied the allegation and, without further inquiry, Scott ordered the DeBiase residence searched.

At about 6:00 p. m. Officers William Woodill and Ralph Gardner arrived at the DeBiase home. Mrs. DeBiase, a fifty-three year old housewife, and her daughter were home at the time. They saw the police outside and Mrs. DeBiase went to the door as the officers knocked. They stated they would like to ask her some questions and she invited them inside. Officer Gardner then stated that the department had information that Mrs. Swain might be living there; Mrs. DeBiase denied this and asked who had supplied such information. Gardner identified Mr. Swain as the source and then stated that he wanted to search the house. Apparently Mrs. DeBiase did not question Mr. Swain's reliability, but, with knowledge of the earlier search of the Wallace residence, she objected to the search and demanded to see a search warrant. She was told that the arrest warrant was sufficient authority for the search.

Mrs. DeBiase claims that during the search two cruisers and a paddy wagon were parked outside with lights flashing (see n. 1 supra) and that her pre-existing stomach ulcer was aggravated by the search and attendant circumstances, causing her to seek medical treatment.

II.

Plaintiffs argue that the department's policy, which authorized officers to search any place without a search warrant when they had a reasonable belief that a person named in a valid arrest warrant might be found there, contravened the "particularity" requirement of the fourth amendment and undercut the rationale upon which fourth amendment jurisprudence is founded. The primary abuse which the fourth amendment was intended to eliminate was the dreaded general warrant which authorized indiscriminate searches of whole neighborhoods; plaintiffs herein contend that if the police alone may decide whether any particular place will be searched, the potential for this abuse is facilitated. See Lankford v. Gelston, 364 F.2d 197 (4 Cir. 1966).

In United States v. Phillips, 593 F.2d 553 (4 Cir. 1978), the premises searched had been a regular rendezvous used by members of a narcotics distribution ring in furtherance of their unlawful activities; this court held that under the facts of that case "the agents were entitled to obtain entry, especially when armed with arrest warrants, despite the absence of a search warrant," in order to make a criminal arrest. The opinion cited and quoted with approval passages from Rodriguez v. Jones, 473 F.2d 599, 606 (5 Cir.), cert. denied, 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007 (1973), including quotations from the Restatement (Second) of Torts.

The issue presented by the instant case whether a search warrant is a constitutional prerequisite to every search for a person named in an arrest warrant on the premises of a third person has not been decided by the Supreme Court or by this Circuit. In Payton the Court noted that neither of the cases before it "raises any question concerning the authority of the police, without either a search or arrest warrant, to enter a third party's home to arrest a suspect." 445 U.S. at 583, 100 S.Ct. at 1378. However, much of the discussion in the majority opinion bears on the proper answer to the question presented in this case, which we specifically refrained from deciding in Lankford.

As the Court noted in Payton, the circuits have not been uniform in their approach to the problem presented by the instant case. Compare United States v. Brown, 467 F.2d 419, 423 (D.C. Cir. 1972), and United...