conducted, and departed shortly thereafter. (U)
73. Upon entering the house, the three (3) Pennsylvania
State Police officers performed a room-by-room search of the
first floor. (U)
74. When that was completed, Corporal Salinas and Trooper
Toboz went upstairs to the second floor and similarly
conducted a room-to-room search. (U)
75. Trooper Houseknecht remained downstairs with Bratton.
76. Bratton never observed what took place during the search
of the second floor.
77. In the course of conducting the search, Trooper Toboz
only searched places in which an individual could conceal
78. He did not look in drawers or cupboards into which a
person could not fit.
79. Because the Pennsylvania State Police had received
information that there might be a trap-door at the Westport
house, they checked the rug which was covering the floor in
80. In the course of the search, furniture behind which an
individual could hide was moved but was replaced.
81. During the search inside the Bratton home on October 16,
1987, State Police officers damaged one piece of molding.
82. The search was completed in approximately 20-30 minutes.
83. Because of the presence of the helicopter and the State
Police vehicles, numerous individuals living in the
surrounding community were observing the October 16, 1987,
84. Michael Lowery was not found in the Westport house. (U)
85. Francis Lowery was visibly angry with Trooper Toboz,
obtained from the dwelling a long gun, and had to be
restrained by his family from using it.
86. Karen Bratton was frightened and intimidated by the
presence of armed law enforcement officers searching her home.
87. Karen Bratton suffered anger and humiliation as a result
of law enforcement officers disturbing her privacy and
searching her home.
88. Karen Bratton's co-workers at her job questioned her
about the October 16, 1987, search, causing her substantial
humiliation and embarrassment.
89. As the result of the October 16, 1987, search, rumors
began circulating in the Westport and Renovo communities that
Karen Bratton was hiding a fugitive; this caused Karen Bratton
mental distress and anguish.
90. Karen Bratton's social life deteriorated substantially
after the October 16, 1987, search. Karen Bratton would not
visit bars or go to dances because of questions about her
alleged involvement with fugitive Michael Lowery.
91. None of the Plaintiffs has received any kind of care or
treatment for any type of problem as the result of the search.
92. None of the plaintiffs has incurred any type of expenses
for medical or other treatment as the result of the search.
On October 16, 1987, Stephen Toboz was contacted by a
confidential informant who told him that he saw Michael
Lowery, a fugitive wanted on charges related to a string of
crimes committed in 1984, unloading wood that morning at a
home owned by Lowery's parents, Francis and Vera Lowery, and
resided in by Karen Bratton. Trooper Toboz believed that the
tip corroborated earlier tips that Lowery was residing at the
Westport home, and possibly was cohabiting with Karen Bratton
there. That afternoon, Toboz and other police officers
conducted a search of the Westport home pursuant to an arrest
warrant issued for Michael Lowery but without a search warrant
for the Westport home. Michael Lowery was not found during the
search and probably did not in fact reside in the house.
Plaintiffs argue that the warrantless search was
unconstitutional and caused mental distress to Karen Bratton
and caused minor physical damage to the property searched.
Plaintiffs seek compensatory and punitive damages pursuant to
42 U.S.C. § 1983. Toboz argues that the
search did not violate Plaintiffs' Fourth Amendment rights
because Toboz reasonably believed the Westport home to be
Michael Lowery's residence and possessed a valid arrest
warrant for Michael Lowery. Toboz further argues that even if
the search was unconstitutional, he is entitled to qualified
immunity from damages. We shall first address the issue of the
constitutionality of the search.
Absent consent or exigent circumstances, entry into a home
to conduct a search or make an arrest is unreasonable under
the Fourth Amendment unless done pursuant to a warrant.
Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d
639 (1980). If, however, officials possess an arrest warrant
founded on probable cause, they may enter a house in which the
suspect lives when there also is reason to believe the suspect
is within. Id. at 603, 100 S.Ct. at 1388. Officials may not,
however, enter the residence of a third party in the belief
that the fugitive they seek may be inside absent a valid search
warrant. Steagald v. United States, 451 U.S. 204, 212, 101
S.Ct. 1642, 1647, 68 L.Ed.2d 38 (1981). The Court in Payton
noted that "physical entry of the home is the chief evil"
against which the Fourth Amendment was intended to guard. 445
U.S. at 585, 100 S.Ct. at 1379. In Steagald, a § 1983 action,
the Court assumed police had probable cause to believe the
fugitive was a guest in the home searched. 451 U.S. at 213, 101
S.Ct. at 1648. Noting that allowing the police to determine
whether probable cause existed to search the home of a third
party pursuant to a valid arrest warrant did not provide enough
protection to the third party, the Court emphasized the
importance of placing a neutral magistrate between the police
and the citizenry, Id. at 211, 101 S.Ct. at 1647, and expressed
its concern that a valid arrest warrant could be used by police
to search the homes of a suspect's friends and acquaintances.
Id. at 215, 101 S.Ct. at 1649. Under Payton and Steagald,
therefore, entry into a residence without a search warrant is
impermissible unless the search is consensual, under exigent
circumstances, or into a suspect's own home pursuant to a valid
arrest warrant and with reason to believe the suspect is
inside. Payton, 445 U.S. at 602, 100 S.Ct. at 1387.
The Plaintiffs contended that Steagald is controlling and
argue that the address of Michael Lowery which appears on the
arrest warrants issued in January, 1985 as that of his parents
in Renovo, Pennsylvania, precludes Toboz from now asserting
that Michael Lowery was residing in the Westport house owned by
his parents. Toboz argues that Michael Lowery has not lived in
his parents' home since the warrant for his arrest was issued.
During that time the Pennsylvania State Police received
information that Michael Lowery was cohabiting with Bratton in
the Westport house and Toboz argues that it therefore was
reasonable to believe that the Westport house was his
"residence" for purposes of the Payton exception to the search
In a dissenting opinion in Steagald, Justice Rehnquist noted
the difficulties created by the Payton exception to the search
If a suspect has been living in a particular
dwelling for any significant period, say a few
days, it can certainly be considered his "home"
for Fourth Amendment purposes, even if the
premises are owned by a third party and others
are living there, and even if the suspect
concurrently maintains a residence elsewhere as
well. In such a case the police could enter the
premises with only an arrest warrant.
Steagald, 451 U.S. at 230-31, 101 S.Ct. at 1656-57 (Rehnquist,
J., dissenting). This case presents a situation which falls
between Payton and Steagald. Based on the tips which the
Pennsylvania State Police had received during 1986 and 1987,
Toboz believed that Michael Lowery was residing surreptitiously
at the Westport house. Toboz's belief was in fact incorrect.
The issue, therefore, is whether a reasonable belief that a
suspect named in an arrest warrant has taken up residence in
the home of a third party falls within the Payton exception to
the warrant requirement.
The Court of Appeals for the Ninth Circuit, in cases not
cited by the parties, has held that if a suspect for whom a
valid arrest warrant exists is a co-resident of the third
party whose home is searched, Payton renders the search
permissible. See United States v. Litteral, 910 F.2d 547,
553-54 (9th Cir. 1990); Perez v. Simmons, 884 F.2d 1136, 1140
(9th Cir. 1989), modified, 900 F.2d 213 (9th Cir. 1990); United
States v. Robertson, 833 F.2d 777, 780 (9th Cir. 1987). In
Perez, a § 1983 action, the court held that a police search of
the home of a third party in which the subject of a valid
arrest warrant was not found, was permissible under Payton and
Steagald if the police had reasonable grounds for believing
that the subject resided in the apartment. Perez, 900 F.2d at
213. Police believed that the subject of a valid arrest
warrant, Albert Perez, "occasionally spent the night" at the
residence of his sister, Irma. Id., 884 F.2d at 1141. The court
refused to view the home as Albert Perez's residence and held
that the lower court erred in instructing the jury that the
third party's residence could be considered the suspect's home
even if the suspect did not in fact permanently reside there.
However, upon rehearing, the court remanded the case to the
lower court with the instruction that:
"Unless a jury finds that the officers had
reasonable grounds for believing that Albert was
a co-resident of the apartment, and for believing
that Albert was in the apartment at the time,
see Payton, 445 U.S. at 603, 100 S.Ct. at 1388, the
search was in violation of Irma Perez's
900 F.2d at 213. The court thus held that the Fourth Amendment
rights of the third party were not violated if police
reasonably believed that the subject of the arrest warrant was
a co-resident of the house searched. Id.
Here, based on the tip received on the morning of October
16, 1987, Toboz believed that Michael Lowery was present
unloading wood at the Westport home that day. Toboz testified
that the informant was reliable. Toboz knew that the house was
heated by a wood burning stove and that people in the area
commonly began stocking firewood at that time of year. Toboz's
belief that Lowery was inside was reasonable. Based on
previous tips, he believed that Lowery was a co-resident with
Bratton of the Westport home. It is our view that Toboz's
belief that Lowery was residing at the Westport home, although
not in fact correct, was reasonable. Despite the fact that
surveillance of the Westport house had been unsuccessful, the
volume of anonymous tips and the fact of Karen Bratton's close
relationship with the Lowerys rendered such a belief
reasonable. We therefore conclude that the search of the
Westport house on October 16, 1987, did not violate the Fourth
Because Toboz believed reasonably that Lowery was a
co-resident at the Westport house, Plaintiffs' Fourth
Amendment rights were not violated even though Lowery was not
in fact a resident there. However, even if the search had been
defective under Steagald, we are of the view that Toboz would
be entitled to qualified immunity from damages.
The Supreme Court set forth the standard by which the
doctrine of qualified immunity must be evaluated, stating:
We therefore hold that government officials
performing discretionary functions generally are
shielded from liability for civil damages insofar
as their conduct does not violate clearly
established or constitutional rights of which a
reasonable person would have known. . . . If the
law was clearly established, the immunity defense
ordinarily should fail, since a reasonably
competent public official should know the law
governing his conduct. (Citations omitted).
Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102
S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1981).
Recently, in Anderson v. Creighton,