Wolfel v. Sanborn

• Decision Date: 02 May 1977
• Docket Number: Nos. 76-1030-31,s. 76-1030-31
• Citation: 555 F.2d 583
• Parties: Dennis M. WOLFEL, Plaintiff-Appellee, Cross-Appellant, v. Nick SANBORN et al., Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 583

555 F.2d 583

Dennis M. WOLFEL, Plaintiff-Appellee, Cross-Appellant, v. Nick SANBORN et al., Defendants-Appellants, Cross-Appellees.

Nos. 76-1030-31.

United States Court of Appeals Sixth Circuit.

Argued Feb. 2, 1977.

Decided May 2, 1977.

Jeffrey W. Hutson, Lane, Alton & Horst, Columbus, Ohio, for plaintiff-appellee, cross-appellant.

William J. Brown, Atty. Gen. of Ohio, Robert D. Doane, Columbus, Ohio, for defendants-appellants, cross-appellees.

Before PHILLIPS, Chief Judge and WEICK and EDWARDS, Circuit Judges.

PHILLIPS, Chief Judge.

The appellee and cross-appellant, Dennis M. Wolfel, was arrested while on parole by the Columbus, Ohio, Police Department and charged with intoxication. Wolfel posted bond, but this bond was forfeited when he failed to appear in court. Subsequently, Wolfel was arrested and his room searched by his parole officer, John Barkeloo, after Barkeloo received an oral complaint against Wolfel for brandishing a gun in public. Wolfel was incarcerated pending investigation of the gun charge. He was not accorded the preliminary hearing to determine probable cause to revoke parole required by Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), because, pursuant to an unwritten policy of the Ohio Adult Parole Authority, Barkeloo and Nick Sanborn, the Regional Supervisor for the Parole Authority, determined that Wolfel's bond forfeiture on the intoxication charge obviated the need for a preliminary probable cause hearing. After 27 days of incarceration, Wolfel was released and returned to parole at the recommendation of Barkeloo.

On March 15, 1974, Wolfel brought this action for damages under 42 U.S.C. § 1983, alleging that Nick Sanborn and John Barkeloo had violated his constitutional rights incident to his arrest, the search of his room without a warrant, and his incarceration without a preliminary hearing. The District Court directed verdicts for the defendants on the arrest and search claims, but refused defendants' requested instructions on good faith in relation to the claim of incarceration without a preliminary hearing. A jury award of $1,000 in damages to Wolfel was sustained by the District Court. Both sides appealed. We affirm the directed verdicts on the arrest and search issues and reverse the judgment for damages on the ground that Sanborn and Barkeloo were entitled to submit their good faith defense to the jury.

I.

Dennis M. Wolfel, plaintiff and cross-appellant, was serving a one-to-fifteen year sentence for burglary in the night season when he was paroled from the Ohio Penitentiary on March 5, 1973. John Barkeloo, defendant, appellant and cross-appellee, was assigned by the Ohio Adult Parole Authority as supervising parole officer for Wolfel.

In the early morning hours of May 27, 1973, Gladys Kuhn, the owner of a sandwich shop, complained to the Columbus, Ohio, Police Department that Dennis Wolfel had been in her shop brandishing a pistol. The police responded and found Wolfel in a nearby tavern. Wolfel denied having a gun. A search by the police of his person, the tavern and the adjacent grounds produced no weapon. The Columbus police arrested Wolfel on an intoxication charge and took him to the station where he posted a $30.00 bond and was released. Wolfel failed to appear on the intoxication charge on May 29, 1973, and his bond was ordered forfeited by a judge of the Municipal Court for Franklin County, Ohio.

On May 28, 1973, Wolfel again was arrested by the Columbus Police Department after a complaint by Gladys Kuhn. This second complaint involved charges of telephone harassment and trespassing. Wolfel again posted bond and was released from custody. These charges of telephone harassment and trespassing were dropped some months later at the request of the City Prosecutor.

On May 29, 1973, Gladys Kuhn appeared at the offices of the Ohio Adult Parole Authority to make a complaint against Wolfel. With John Barkeloo present, Mrs. Kuhn dictated a statement accusing Wolfel of brandishing a gun in her place of business on May 27th and making threatening gestures toward her and another employee. A typewritten copy of the statement was prepared but Mrs. Kuhn did not sign it.

Defendant Barkeloo arranged to meet with Wolfel on the next day, May 30th, at the home of Wolfel's grandmother where Wolfel maintained a room. Wolfel appeared voluntarily and accompanied Barkeloo and another parole officer back to the offices of the Parole Authority. Barkeloo informed Wolfel of the charges Gladys Kuhn had made against him. After consultation with Nick Sanborn, Columbus Regional Supervisor for the Ohio Adult Parole Authority and Parole Officer Barkeloo's immediate superior, Barkeloo arrested Wolfel for parole violations. Wolfel was permitted to contact his attorney and was then incarcerated in the county jail. Wolfel was not afforded a preliminary "on-site" hearing to determine whether there was probable cause to revoke his parole at the time of his arrest or during his subsequent incarceration.

On May 31, 1973 one day after Wolfel's arrest and two days after Gladys Kuhn made her complaint to the Parole Authority defendant Sanborn consulted with Barkeloo and then directed Barkeloo and another officer to go to Wolfel's grandmother's house and search for the firearm. Wolfel's living quarters consisted of a small, unlocked room in his grandmother's house which Wolfel occupied alone and without paying rent. The district court determined that Wolfel's grandmother had custody and control over the room Wolfel occupied and that she consented to the search of this room by Parole Officer Barkeloo and his associate on May 31. The search was conducted with Mrs. Wolfel in attendance and no firearm was found.

On June 16, 1973, defendant Barkeloo filed a report with the Parole Authority recommending that Wolfel be released from custody and returned to parole. This report was processed and approved and on June 26, 1973 (27 days after his arrest by defendant Barkeloo), Wolfel was placed back on parole.

The instant civil rights action was commenced by plaintiff Wolfel against defendants Sanborn and Barkeloo on March 15, 1974. At the time of trial two basic claims remained to be resolved: (1) that the defendants by the arrest and incarceration of plaintiff without an on-site hearing deprived plaintiff of his right to liberty and his right to due process; and (2) that defendants by their search of plaintiff's dwelling place without a warrant and without his consent deprived plaintiff of his fourth amendment freedom from unlawful search. Plaintiff sued for damages in the amount of $10,000 on each claim and an additional award of punitive damages.

After hearing the evidence adduced at trial, the district court directed verdicts for the defendants concerning the propriety of the arrest by Barkeloo on May 30, and concerning the search of Wolfel's room on May 31. The court found that Barkeloo had reasonable cause to believe that Wolfel had violated the terms of his parole and thus was authorized to arrest Wolfel pursuant to Ohio Revised Code § 2967.15. ¹ The court also found, as noted above, that Wolfel's grandmother exercised control over the room Wolfel occupied in her house, that she had authority to consent to a search of the room, and that she in fact had consented.

On the issue of incarceration without a preliminary on-site hearing, the evidence showed that the events in question occurred after the Supreme Court announced its decision in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and that Wolfel was not accorded the on-site hearing indicated in that decision. Plaintiff introduced as an exhibit Parole Supervision Section Bulletin No. 13 promulgated by the Ohio Department of Rehabilitation and Correction and dated January 17, 1973. This Bulletin stated in part as follows:

I. PURPOSE

As a result of the ruling on June 29, 1972, by the United States Supreme Court in the case of John J. Morrissey and G. Donald Booher, petitioners, versus Lou B. Brewer, Warden, et al., the following procedures will be necessitated when a parole violation report is submitted.

II. POLICY

1) Except when the parolee has absconded and his whereabouts is unknown or when there has been a judicial determination by a court of probable cause (this includes preliminary hearing resulting in a bind over, Bill of Information, and Secret Indictment) or a conviction of any crime or an adjudication of any fact constituting a violation of parole, a hearing must be afforded the parolee at or near the site of the alleged violation of his parole.

2) A) The Hearing: Technical Violations

The hearing shall be conducted by the Regional Coordinator or person of supervisory rank designated by him. The supervisor shall be a person other than the supervisor controlling the case. The hearing shall be scheduled to take place within ten working days after our official detainer is filed against the parolee.

Defendants acknowledged that they were aware of the Morrissey decision and of Bulletin 13 at the time in question, but asserted that they reasonably and in good faith believed that plaintiff's May 29, 1973, bond forfeiture on the intoxication charge constituted a "conviction" within the meaning of Bulletin 13 and thus obviated the requirement for a Morrissey on-site probable cause hearing. Defendants first raised this defense of good faith in a motion for summary judgment filed with the district court prior to trial. Defendant Barkeloo submitted an affidavit in support of this motion stating as follows:

Affiant assumes that the Adult Parole Authority failed to give Plaintiff an "on-site" hearing because the general practice and understanding at the Adult Parole Authority then was that a municipal court bond forfeiture, as had occurred in plaintiff's intoxication case, satisfied the "probable cause" finding requirement of Morrissey v. Brewer, 408 U.S. 471 (92 S.Ct. 2593, 33...