(Supplementation of Record Completed March 21, 1974) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Civil No. 594-69
Van Dusen, Aldisert and Rosenn, Circuit Judges. Aldisert, Circuit Judge, concurring and dissenting.
This appeal raises serious questions concerning the right of privacy and the constitutionality of house-to-house police searches without search warrants for a suspect for whom the police have an arrest warrant. The disposition of the appeal involves a balancing of the duty of police officers to search for and arrest those who commit crime and the right of innocent citizens to be secure in the privacy of their homes against unreasonable police invasion.
Plaintiffs, six black citizens of Newark, New Jersey, brought a civil suit for damages under 42 U.S.C. § 1983*fn1 alleging that the defendants, all members of the Newark Police Department, violated plaintiffs' civil rights by their roles in three incidents which occurred in the days following an armed bank robbery. As to the first incident, plaintiff Bernice Bass alleged a cause of action against George MacDonald a detective in the Newark Police Department, for his role in a police entry without a search warrant into her apartment on March 11, 1969. As to the second incident, plaintiffs Marian Fisher and her mother Evangelene Tresvant, Robert Ziemoore and his wife Addie, and Eunice Webbs brought suit against MacDonald and John Curtis, a lieutenant in the police department, for their roles in police entries without search warrants into their respective apartments on March 12, 1969. Additionally, plaintiff Don Clark brought suit against Christian Volz, Captain of the Newark Police Department, for his role in the alleged physical abuse of Clark by the police while they were searching Clark's apartment on March 14, 1969.
A single amended complaint was filed in behalf of all plaintiffs and the cases were tried jointly to a jury commencing November 14, 1972. After a trial of almost three weeks and deliberations of more than seven hours, the jury returned verdicts as follows:
(1) For plaintiff Bass, no damages against defendant MacDonald;
(2) For plaintiffs Fisher, Tresvant, the Ziemoores, and Webbs, no damages against MacDonald and no compensatory damages against Curtis; however, as punitive damages against Curtis, $250 jointly to Fisher and Tresvant, $250 jointly to the Ziemoores, and $250 to Webbs;
(3) For Plaintiff Clark, no compensatory damages against Volz, but $500 in punitive damages.
The trial judge denied a series of motions by both plaintiffs and defendants for judgments notwithstanding the verdict and for new trials. Judgments were entered on the verdicts and all plaintiffs and defendants except plaintiff Clark appeal.
The police actions which are the subject of these suits were a sequel to the March 6, 1969, armed robbery of the Saddle Brook, New Jersey, branch of the Hackensack Trust Company. Four men armed with guns entered the bank, taking $69,000, and in the process of making their getaway wounded a member of the Saddle Brook Police Department. The FBI promptly entered the case and almost immediately obtained arrest warrants for several known participants. The FBI activity was coordinated with the Newark Police Department because the known suspects were from Newark. Three suspects were arrested within a few days, and by March 11 the police and FBI were searching for four additional suspects, Donald Crapps, Donald Shipley, Barry Shipley, and John Allen Bamberger.*fn2
Since the parties and the issues differ as to each of the three police actions involved in this case, in the interest of clarity we will treat each action separately even though the actions were tried jointly.
The testimony of the police and FBI agents established the following sequence of events. On the morning of March 11, 1969, Agent Genakos, who was in charge of the FBI investigation of the bank robbery, was interviewing the mother of Barry Shipley, the suspect, in the house where he lived. Another agent noticed a phone number on the wall with the name of suspect "Bamberger" written over it. The phone number was checked with the telephone company, and within three or four hours the FBI was informed that the subscriber was a "B. Bass" at 2 Custer Avenue, Newark, New Jersey. Agent Genakos then checked and discovered that a "B. Bass" had been involved in the release of Barry Shipley on bail after a prior unrelated arrest.
Approximately ten FBI agents and Newark police officers armed with shotguns arrived at 2 Custer Avenue at 4:20 or 4:30 that afternoon. The address turned out to be a six story apartment house. Two agents went to the superintendent's office, inquired about B. Bass, and were given the key to plaintiff's apartment after being told that this was the only B. Bass listed in the building.
A party of five or six officers ascended to the apartment, including Detective MacDonald, a plainclothesman on the Bandit Squad of the Newark Police Department. After knocking on the door and receiving no answer, the officers gained entry by opening the door with the key. They testified that they spent between half a minute and two minutes searching the apartment for the suspects,*fn3 and then left without finding anybody.*fn4
When Mrs. Bass, who was living alone in the apartment, returned from work after 5:00 P.M., she was told by neighbors of the police entry. This was confirmed when she called the Newark police and the FBI office. Mrs. Bass, who did not allege that there was any physical damage to her apartment, testified that she was embarrassed and humiliated by the incident.*fn5
There was testimony that at the time of the entry into the Bass apartment there were arrest warrants outstanding for the remaining suspects in the robbery. It is undisputed, however, that the police did not have a search warrant either for the apartment building at 2 Custer Avenue or for the individual Bass apartment. Agent Genakos testified that he made no effort to obtain a search warrant, apparently because he believed it would have taken too long.*fn6 Detective MacDonald testified that he simply went along "for assistance" after being told by the FBI that "Donald Shipley was in that building, in an apartment." MacDonald who had been on the Newark police force for twenty-four years, testified that he had never secured a search warrant even though he had entered "thousands" of apartments. He acknowledged that he made no effort to obtain a search warrant for this entry. Agent Genakos on cross-examination agreed with the statement that "at [the time of entry] you had no indication of [the presence of any of the suspects in the apartment] whatever."
The jury, as noted, returned a verdict of no cause of action by plaintiff Bass as against MacDonald. The jury had been instructed, in answer to a written question, that it could find a cause of action for plaintiff Bass only if it found a violation of one of her constitutional rights. The only issue raised on the Bass appeal concerns the standard for determining whether her fourth amendment rights had been violated by the entry into her apartment. Plaintiff Bass contends, in the alternative, that the charge given by the court was improper,*fn7 or that she was entitled to a directed verdict as a matter of law on the issue of liability.
The tenor of the court's charge to the jury on the issue of warrantless searches, to which counsel for plaintiffs made timely objections, was as follows: Warrantless searches are per se unreasonable under the fourth amendment unless the police can meet the "heavy burden" of showing that "exigent circumstances or urgent need" gave them no time to procure a warrant; the need must arise from "an immediate major crisis in the performance of duty."
Therefore, in determining whether there were exigent circumstances and whether the defendants were entitled to search the plaintiffs' homes in the absence of search warrants you, the jury, may consider a number of factors that are material. [Emphasis supplied.]
The charge listed eleven factors which the jury could consider in assessing whether exigent circumstances were present, such as the dangerousness of the suspect, the nature of the offense involved, the time and manner of entry into the premises, and the opportunity for obtaining a warrant.*fn8 Included in the list were the factors:
(a) Was there more than a minimum of probable cause to believe that the suspect committed the crime involved?
(b) Was there strong reason to believe that the suspect was in the premises being entered?
The court went on to say that "the defendant must prove by a preponderance of the evidence that the circumstances at that time were such as to justify the action which they took."
The charge clearly permitted the jury to return a verdict against plaintiff Bass if it found that the existence of some of the factors enumerated by the trial court created "exigent circumstances" which justified the entry into her apartment, even though there might not have been probable cause to enter. Bass contends that the requirement of probable cause to believe that the suspect is in the apartment is an indispensable, independent requirement notwithstanding the presence of exigent circumstances. We agree and reverse as to plaintiff Bass.
A. The Constitutional Requirement of Probable Cause
Even if exigent circumstances exist, police officers without a valid search warrant may not constitutionally enter the home of a private individual to search for another person, though he be named in a valid arrest warrant in their possession, absent probable cause to believe that the named suspect is present within at the time. The police testimony in this case established the existence of the majority of factors which the court instructed the jury were relevant to a finding of "exigent circumstances."*fn9 It is, therefore, quite possible that the jury relied upon these factors to uphold the constitutionality of the search even though the jury did not believe (or would not have believed if they had considered the question) that the police had probable cause to enter the apartment. We therefore do not believe the error in the charge was harmless error, and we must reverse the trial judge's denial of a new trial to plaintiff Bass.
The fourth amendment to the Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Supreme Court has recognized that the physical invasion of the home is "the chief evil" to which the fourth amendment is historically directed. United States v. United States District Court, 407 U.S. 297, 313, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972). Although crime has become an increasingly serious problem in our affluent society,
the right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be ...