Rosemary BRADWAY, Plaintiff-Appellant,
Earl J. Bradway; Earl J. Bradway, Jr., a minor who sues by
his natural parents, guardians, and next friends, Rosemary
Bradway and Earl J. Bradway; Justin E. Bradway, a minor who
sues by his natural parents, guardians, and next friends,
Rosemary Bradway and Earl J. Bradway, Plaintiffs,
v.
William P. GONZALES, New York State Trooper; Susan C.
McDonough, New York State Trooper; Brian T.
White, New York State Trooper,
Defendants-Appellees,
Gerald Spencer, Defendant.
No. 1131, Docket 93-7831.
United States Court of Appeals,
Second Circuit.
Argued March 8, 1994.
Decided June 10, 1994.
Lewis B. Oliver, Jr., Albany, NY (Oliver & Oliver, Harriet B. Oliver, on the brief), for plaintiff-appellant.
Andrea Oser, Asst. Atty. Gen., Albany, NY (Robert Abrams, Atty. Gen. of the State of N.Y., Peter H. Schiff, Deputy Sol. Gen., of counsel, Nancy A. Spiegel, Asst. Atty. Gen., on the brief), for defendants-appellees.
Dianne M. Dillon, Springfield, MA (Dusel, Murphy, Fennell, Liquori & Powers), for defendant.
Before: WALKER, JACOBS, Circuit Judges, and CARMAN*, Judge.
JACOBS, Circuit Judge:
On February 20, 1988, New York State Troopers entered the home of Rosemary Bradway on the pretext of executing an arrest warrant for her ex-husband. The Troopers' objective was to find a wood stove and milk cans that had been stolen from a hunting camp. Upon discovering this cache, the Troopers arrested plaintiff for possessing stolen property and making a false written statement.
Following the dismissal of the criminal charges against her, plaintiff commenced an action pursuant to 42 U.S.C. Sec. 1983 alleging that her constitutional rights were violated because (i) the search of her home was unlawful in scope, and (ii) she was arrested without probable cause. A jury awarded plaintiff $100,000 in compensatory damages for her false arrest, but did not reach a general verdict as to whether the search of her home was unlawful. The United States District Court for the Northern District of New York (McAvoy, J.) denied plaintiff's request that the verdict form be resubmitted to the jury for a determination on this issue. The district court then granted the Troopers' motion for judgment as a matter of law on the ground of qualified immunity.
For the reasons set forth below, we affirm.
BACKGROUND
A. The Search
In July of 1987, Gerald Spencer and Charles Gardener reported that a wood stove and two steel milk cans had been stolen from their hunting camp. On February 2, 1988, New York State Trooper Susan McDonough received a tip from a man named Andrew Hughey that the stove was in the basement of 38 Tarborton Road, a house in West Sand Lake, New York, owned by plaintiff-appellant Rosemary Bradway. This information prompted an investigation of plaintiff, which revealed that the Rensselaer County Family Court had issued an outstanding arrest warrant based on the failure of her former husband, Earl Bradway, to provide child support.
On February 20, 1988, McDonough and fellow State Trooper Brian White met with Spencer and Gardener concerning the stolen milk cans and stove. At that meeting, Spencer and Gardener described a black, "Shenendowa"-brand stove with a dent on the back of the top lid roughly four inches long and with a crescent-shaped modification to the ashpan.
McDonough and White unsuccessfully sought out Andrew Hughey to obtain a supporting affidavit for a search warrant application. Without Hughey's affidavit, it was impossible to obtain a search warrant for 38 Tarborton Road. Nevertheless, the Troopers proceeded to the Bradway residence (with Spencer and Gardener in tow) in the hope that someone would consent to a search of the premises. In the alternative, McDonough was authorized to execute the arrest warrant for Earl Bradway.
When they arrived at 38 Tarborton Road, White and McDonough informed plaintiff of the dual purpose of their visit: they were searching for stolen property and attempting to execute the arrest warrant for Earl Bradway. In McDonough's presence, plaintiff signed a form consenting to a search. Once inside the house, the Troopers descended to the basement, where they found a wood stove and two steel milk cans fitting the descriptions provided by Spencer and Gardener. Spencer identified the stove and milk cans as the property stolen from his hunting camp.
The Troopers questioned plaintiff about the stove and the milk cans. She claimed that her ex-husband Earl had bought the stove two or three years before, and that she had owned the milk cans for almost twenty years. On the basis of these statements, the Troopers arrested plaintiff. She was escorted to the police station, where she gave a written statement that the "Shannandoah woodstove has been in my basement for two or three years." The statement also provided: "I was ... advised by the Troopers that two milk cans--one small one with green paint--with the words TEEHANS DYES and another 3FT size can with the words Dairyman League are stolen property. I have had these milk cans for twenty one years." Plaintiff was charged with possessing stolen property in violation of New York State Penal Law Sec. 165.40, and with making a false written statement in violation of New York State Penal Law Sec. 210.45. The criminal charges were dismissed on October 11, 1989, pursuant to an adjournment in contemplation of dismissal.
B. The Proceedings Below
On February 8, 1991, plaintiff commenced an action in the Northern District of New York pursuant to 42 U.S.C. Sec. 1983, alleging violations of her constitutional rights and seeking damages. Specifically, she claimed that (i) the seizure of the wood stove was accomplished by means of a warrantless and non-consensual search (the "unlawful search claim") and (ii) her arrest was not supported by probable cause (the "false arrest claim").
Conflicting accounts were presented at trial concerning what transpired at the Bradway residence on February 20, 1988. McDonough testified that plaintiff voluntarily signed the consent to search form. Plaintiff, however, testified that she consented only after she was threatened by the Troopers and told she would lose her children if she did not cooperate.
Witnesses also differed as to the scope of the search conducted in accordance with Earl Bradway's arrest warrant. Plaintiff testified that the Troopers searched drawers, wallets, and other places in which Earl Bradway could not have been concealed. The Troopers denied searching such places.
Finally, testimony conflicted as to when Spencer was summoned into the house to identify the stove and the milk cans. According to the Troopers, Spencer did not enter the house until after the stove was discovered. Plaintiff, however, testified that Spencer had entered the house with the Troopers when the search began.
Prior to the close of evidence, White and McDonough asserted qualified immunity and moved for judgment as a matter of law under Federal Rule of Civil Procedure 50. The district court reserved decision.
After the lengthy trial, the jury was given a verdict form with a series of written interrogatories. As to the unlawful search claim, the jury found (i) that plaintiff had not voluntarily consented to the search of her home, and (ii) that the Troopers reasonably believed that Earl Bradway was on the premises. The jury did not hand down a general verdict on the unlawful search claim, and was not asked to do so. As to the false arrest claim, the jury found that (i) the Troopers lacked probable cause to believe that plaintiff committed the offense of criminal possession of stolen property, and (ii) plaintiff was entitled to $100,000 in compensatory damages.
After the jury answered the interrogatories (but before the jury reconvened to consider punitive damages), plaintiff's counsel for the first time raised an objection to the verdict form. Although the verdict form asked if the Troopers had probable cause to believe that Earl Bradway was in the house, it did not ask if the scope of the search that the Troopers conducted exceeded that authorized by Earl Bradway's arrest warrant. Plaintiff's counsel claimed that this omission prevented the jury from rendering a verdict on plaintiff's unlawful search claim and asked that the jury be sent back for further deliberations. The district court denied the request, finding that any objections to the verdict form had been waived.
After the jury returned its verdict, the district court revisited the Troopers' motion to dismiss the complaint on the ground of qualified immunity. Before ruling on the motion, the district court entered findings of fact that (i) the execution of the arrest warrant for Earl Bradway was a pretext for conducting a search for the stolen property, and (ii) "Spencer was not brought into the premises until after the stove was located." The district court then determined that the Troopers were entitled to qualified immunity for both the search and the arrest, and thereupon dismissed the complaint in a decision dated May 4, 1993.
Plaintiff's motion for reconsideration was denied, and this appeal followed.
DISCUSSION
Plaintiff claims the district court erred in (i) failing to resubmit the verdict form to the jury for a determination as to whether the search of the premises was properly confined in scope, and (ii) dismissing her unlawful search and false arrest claims on the ground of qualified immunity. We conclude that any objection to the verdict form was waived and that the Troopers are entitled to qualified immunity on the unconstitutional search and arrest claims.
A. Objection to the Verdict Form
When the jury retired for deliberations, the district court submitted a verdict form that asked if the Troopers had probable cause to believe that Earl Bradway was at plaintiff's house on February 20, 1988, to which the jury answered in the affirmative. The verdict form did not, however, ask the jury if the Troopers exceeded the scope of the search authorized by Earl's arrest warrant by searching through drawers, wallets, and other compartments too small to contain Earl Bradway. After the jury responded to the verdict form interrogatories, plaintiff asked the district court to resubmit the verdict form to the jury for consideration of this issue. The district court refused, finding that plaintiff waived any objection she might have had to the verdict form.
The waiver analysis requires that we first determine whether that portion of the verdict form pertaining to the unlawful search claim asked for special verdicts under Rule 49(a) or a general verdict accompanied by written answers to interrogatories under Rule 49(b). The answer is critical to the waiver analysis because Rule 49(a) explicitly provides that, if in giving the verdict form to the jury "the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury." Fed.R.Civ.P. 49(a) (emphasis added). There is no counterpart waiver provision in Rule 49(b).
Federal Rule of Civil Procedure 49 provides for two different verdict forms. Under Rule 49(a), the court "may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact." Fed.R.Civ.P. 49(a). Rule 49(b), meanwhile, allows a court to "submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict." Fed.R.Civ.P. 49(b) (emphasis added). "The distinction between the two provisions is that under Rule 49(a) the jury answers primarily factual questions for the benefit of the trial court which then applies the law to those answers. Under Rule 49(b), the jury after being fully instructed answers the interrogatories, renders a general verdict and the trial court enters judgment on the jury's verdict." Lavoie v. Pacific Press & Shear Co.,
We are compelled to analyze the unlawful search segment of the verdict form under Rule 49(a). That is because, as conceded at oral argument, the verdict form did not solicit the one response essential to a Rule 49(b) verdict form--a general verdict. Unlike the false arrest portion of the verdict form, the unlawful search portion did not offer the jury "the ultimate choice normally called for by a general verdict--the defendant is liable to the plaintiff for a specified amount of damages, or the defendant is not liable to the plaintiff." Lavoie,
Plaintiff argues that we cannot subject the verdict form to a Rule 49(a) analysis because the district court itself "believe[d] that the verdict form was one prepared and submitted to the jury pursuant to Rule 49(b)." We are unpersuaded. The district court's characterization of the verdict form may reference the false arrest portion of the verdict form, or may reference an earlier draft of the form, or may reflect a simple misstatement. In any event, it is perfectly apparent that the verdict form sought only special verdicts concerning the unlawful search claim. A general verdict was neither called for nor rendered. That being the case, we must treat the verdict form as one governed by Rule 49(a).
As noted earlier, failure to challenge the omission of an issue from a Rule 49(a) verdict form before the jury retires to deliberate constitutes a waiver of the right to a trial by jury on that issue. See Metromedia Co. v. Fugazy,
B. Qualified Immunity
After the jury returned its verdict, the district court concluded that plaintiff's Sec. 1983 action against the Troopers was barred by the doctrine of qualified immunity, and therefore granted the Troopers' motion for judgment as a matter of law under Federal Rule of Civil Procedure 50. On appeal, plaintiff argues that the Troopers were not entitled to qualified immunity on either the unlawful search claim or the false arrest claim.
In ruling on a motion for judgment as a matter of law, "or in reviewing its grant or denial on appeal, a court must 'view the evidence in the light most favorable to the party against which the motion was made.' " Piesco v. Koch,
The doctrine of qualified immunity shields public officials performing discretionary functions from civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known," Harlow v. Fitzgerald,
"[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action ... assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton,
(1) whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.
Jermosen v. Smith,
1. The Unlawful Search Claim
The district court found that (i) it was objectively reasonable for the Troopers to rely on the arrest warrant as a basis for entering and searching 38 Tarborton Road and (ii) a reasonable police officer would have believed that the plain view exception to the Fourth Amendment warrant requirement provided a lawful basis for seizing the wood stove and the milk cans. Plaintiff disputes this second finding, claiming that "in light of the legal rules that were 'clearly established' at the time" of the search, Anderson,
The first step in our analysis "is to determine whether the alleged conduct violates any constitutionally protected right at all. Conduct that does not violate any constitutional right certainly does not violate a constitutional right that was 'clearly established' at the time the conduct occurred." Mozzochi v. Borden,
Under presently existing constitutional law, there is no "inadvertent discovery" limitation on the plain view doctrine. In Horton v. California,
Our analysis is not altered by the district court's finding that "the alleged search for Earl Bradway was a mere pretext for what was an otherwise unlawful search." In evaluating the legitimacy of police conduct under the Fourth Amendment, we look to objective circumstances rather than an officer's subjective motivation. See Scott v. United States,
Relying on the Supreme Court's decision in Coolidge, plaintiff argues that, irrespective of what the law may be today, the Troopers' plain view seizure was clearly unconstitutional under the law as it existed in February 1988. Justice Stewart's plurality opinion in Coolidge did indeed state that inadvertent discovery is a prerequisite to the application of the plain view doctrine. However, the portion of Justice Stewart's opinion that grafted an inadvertence requirement onto the plain view doctrine was joined by only three other members of the Court. Justice Harlan concurred in the judgment but declined to acknowledge the inadvertence requirement, and the remaining four justices expressly disagreed with Justice Stewart on this issue. After Coolidge but before the February 1988 search of 38 Tarborton Road, the Supreme Court issued Arizona v. Hicks,
Even apart from the matter of inadvertence, plaintiff claims that the Troopers are not protected by the plain view doctrine because (i) the search conducted pursuant to the arrest warrant for Earl Bradway was not properly confined in area and duration, and (ii) the incriminating nature of the stove was not immediately apparent. These contentions are unsupported by the record.
To justify a warrantless seizure under the plain view doctrine, the officer must "be lawfully located in a place from which the object can be plainly seen." Horton,
Another necessary precondition to a lawful plain view seizure is that the incriminating character of the goods be immediately apparent. Horton,
Therefore, the district court did not clearly err in finding that a reasonable police officer would have believed that the seizure of the stove was justified under the plain view doctrine.
2. The False Arrest Claim
The next question is whether the Troopers are entitled to qualified immunity for the February 20, 1988 arrest of plaintiff. The jury found that the Troopers lacked probable cause to believe that plaintiff committed the offense of criminal possession of stolen property. Nevertheless, the district court recognized that "the question of immunity is distinct from the question of probable cause," and that "[a] finding by the court that a defendant is entitled to qualified immunity is legally consistent with a finding that probable cause did not exist for the arrest." The district court then found that it was objectively reasonable for an officer to believe that probable cause existed for the arrest.
In its qualified immunity analysis, the district court relied on (i) the presence of the wood stove and the milk cans in the basement of 38 Tarborton Road, and (ii) plaintiff's improbable statements concerning how long those items had been in her possession. In this context, plaintiff again urges that, under the law as it existed in 1988, the seizure of the stove and the milk cans did not comport with the plain view doctrine. Without this contraband, plaintiff continues, the officers did not have sufficient evidence to provide probable cause for her arrest.
As discussed above, the unlawful search claim is nonviable because, considered in light of the law today concerning the plain view doctrine, the search did not violate plaintiff's constitutional rights. On the false arrest claim, however, plaintiff is not asserting a violation of her right to be free from plain view seizures resulting from pretextual searches. Instead, she asserts her right to be free from arrest without probable cause, a right she clearly enjoys under presently existing law. See Golino,
In this way, plaintiff's false arrest claim introduces her unlawful search claim through the back door. Since the alleged conduct (arrest without probable cause) does violate a constitutional right, plaintiff urges us to scrutinize all of the acts giving rise to probable cause (including the seizure of the stove and the milk cans) under pre-existing law. See Anderson,
Under plaintiff's analysis, an officer could be entitled to qualified immunity for a seizure yet nevertheless be liable for an arrest resulting from that seizure. That approach, however, advances none of the competing goals served by the qualified immunity doctrine. Holding the Troopers liable for an arrest deemed objectively unreasonable because it is based on a seizure that in retrospect was arguably constitutional would not adequately insulate public officials from "undue interference with their duties and from potentially disabling threats of liability." Harlow,
Even if we were to view the seizure under the law as it existed in 1988, the Troopers would nevertheless be entitled to qualified immunity on the false arrest claim. As noted above, the Supreme Court had not clearly established inadvertence as a necessary element of a lawful plain view seizure. Therefore, a reasonable officer could have believed that the plain view doctrine provided a lawful basis for seizing the wood stove and the milk cans. A reasonable officer who found the stove and cans, and who heard plaintiff's implausible explanation for possessing them, would have believed that probable cause existed for plaintiff's arrest.
CONCLUSION
For the foregoing reasons, the decision of the district court granting appellees judgment as a matter of law on the ground of qualified immunity is affirmed.
Notes
Honorable Gregory W. Carman of the United States Court of International Trade, sitting by designation