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Keating v. Coslett

United States District Court, Middle District of Pennsylvania

January 27, 2014

MARC KEATING, Plaintiff
v.
FRANK COSLETT, et al., Defendants

SLOMSKY, J. [1]

REPORT AND RECOMMENDATION

KAROLINE MEHALCHICK UNITED STATES MAGISTRATE JUDGE

This case arises out of an incident in which two police officers and a parole agent entered the home of the father of Plaintiff, Marc Keating, searched the home, and handcuffed and strip-searched Keating (who was present at the house at the time). Keating initiated this action with the filing of a Complaint on March 22, 2011. (Doc. 1). Keating filed an Amended Complaint on October 14, 2011, naming as Defendants the City of Pittston, Pennsylvania State Parole, Pittston City Police Officers Justin Tokar and Maivaun Houssein, and Pennsylvania Probation and Parole Agent Frank Agent Coslett, and alleging that his Fourth Amendment rights were violated by Defendants’ illegal entry, search, seizure and arrest pursuant to 42 U.S.C. § 1983. (Doc. 18).

Following this Court’s dismissal of Defendants City of Pittston and the Pennsylvania State Parole, Plaintiff was permitted to proceed against Defendants Officers Tokar and Houssein and Agent Coslett with respect to his illegal entry claim in Count I of his Amended Complaint, and the illegal search and seizure claims set forth in Count II of the Amended Complaint. (Doc. 27 and Doc. 30). Pending before this Court are the motions for summary judgment of Defendants Officers Tokar and Houssein (Doc. 45) and Defendant Agent Coslett (Doc. 49). These motions have been fully briefed and are ripe for disposition.

I. Factual Background

Defendant Frank Coslett is a Pennsylvania State Parole agent based out of the Scranton district office. (Doc. 58-2, p. 3). Defendant Justin Tokar, at all relevant times, was a police officer with the Pittston Police Department. Defendant Maivaun Houssein, at all relevant times, was a police officer for the Pittston Police Department. Plaintiff, Marc Keating, is an individual who, at all relevant times, was subject to parole supervision as a result of a criminal conviction and had an approved residence listed with the Pennsylvania Board of Probation and Parole as 3 James Street, Pittston, Pennsylvania. (Doc. 50-2, p.38).

The conditions of Keating’s parole included that his approved residence may not be changed without the written permission of the parole supervision staff. (Doc. 50-2, pp. 37, 52;[2]Doc. 48-2, p. 3). Additionally, the conditions of Keating’s parole include an express consent by Keating “to the search of [his] person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole.” (Doc. 50-2, p. 52). Special conditions were also attached to Keating’s parole, including that he “shall submit to urinalysis testing” and “achieve negative results in screening tests… for the presence of controlled substances or designer drugs…” and that he “shall not consume or possess alcohol under any condition for any reason.” (Doc. 50-2, p. 53).

The Home Provider Agreement gives the parole supervision staff the right to search the residence at any time when reasonable suspicion exists that conditions of supervision have been violated. (Doc. 50-2, p. 51). Additionally, the Home Provider Agreement signed for the 90 Market Street residence prohibits Keating from living in a residence with firearms, including look-alike firearms such as air rifles, starter pistols or toy guns. (Doc. 50-2, p. 51). When he signed the Home Provider Agreement on October 14, 2009, Keating agreed to these conditions.

Pennsylvania State Parole Agents have to approve the home plan. Parolee must have an approvable site to go to. (Doc. 58-2, p. 6). Agent Coslett believes that, as an agent, he has the power to take custody of a person and incarcerate them, and further that if a that he has the right to enter a parolee’s residence if he has reasonable suspicion to believe that conditions of parole have been violated. (Doc. 58-2, pp. 6-8). If a parolee wishes to change anything on his home plan, including his approved residence, he needs to make a request of his agent, who would then conduct an investigation to approve the change. (Doc. 58-2, p. 7).

The undisputed facts in the record are as follows: On morning of October 14, 2009, Agent Coslett telephoned Keating to tell him he needed to collect a urine sample from him, and then proceeded to Keating’s approved residence at 3 James Street. (Doc. 58-2, p. 10; Doc. 50-2, p. 39). Agent Coslett asked Keating where he was living, and Keating told him that he was living at 90 Market Street, and that all his belongings were there and that he was fixing it up. (Doc. 58-2, p. 10). The utilities were in Keating’s name at the 90 Market Street residence, and he received mail there for the utilities. (Doc. 50-2, p. 40). Keating testified at his deposition that the residence at 3 James Street was his primary residence, but that he also resided at 90 Market Street from 2007 until April 2012. (Doc. 50-2, p. 24). Keating testified that he was staying at 90 Market Street, on average once or twice a week. (Doc. 50-2, p. 48). Keating further testified in the same deposition that he had been primarily sleeping at the 3 James Street residence, but that he signed the new home agreement letter because Agent Coslett told him he would get “jammed up” if he did not sign it. (Doc. 50-2, p. 40). Agent Coslett informed Keating that staying at 90 Market Street was a violation of his parole because it was not his approved residence, and asked him if he wanted to stay at the Market Street address, and if that is where Keating wished to have his approved residence. (Doc. 58-2, p. 10).

Following the meeting at 3 James Street, Agent Coslett drove to the Market Street residence and met Keating, who had walked to the location. It is unclear from the record as to when Agent Coslett had Keating sign a new Home Provider Agreement for the 90 Market Street residence. Agent Coslett testified that he retrieved a home provider agreement letter and Keating signed the same prior to asking Keating to show him around the Market Street residence, which Keating agreed to do. (Doc. 58-2, p. 10). Keating testified that Agent Coslett presented him with the home agreement letter after Agent Coslett had searched the house for the first time, but before Tokar and Houssein got there. (Doc. 50-2, 35). Regardless, the home provider agreement letter doesn’t address the violation of changing residence without permission; rather, it addresses to Keating what the rules of the residence will be if he was going to live at the residence. The agreement was signed at 9:13 a.m. (Doc. 58-2, p. 12).

Agent Coslett testified that he had reasonable suspicion to search the residence at 90 Market Street because of the change in residence without permission, which was a violation of Keating’s conditions of parole. At the time Agent Coslett called the Pittston Police Department, he intended to conduct a parole search of the Market Street residence. A parole search is a warrantless search that can be conducted by an agent whenever there exists reasonable suspicion that conditions of parole have been violated. (Doc. 58-2, p. 15).

At some point Agent Coslett secured a urine sample from Keating, which tested positive for morphine. (Doc. 58-2, p. 11). Keating told Agent Coslett he had used his mother’s prescription without her permission, which was a violation of his parole. (Doc. 58-2, p. 11). Agent Coslett began his first search of the Market Street residence, with Keating showing him through the house. Francis Lombardo[3] was sleeping on the living room couch. (Doc. 58-2, p. 11).

Agent Coslett testified that he called his supervisor to advise him of the situation and to ask if there were any other agents in the area to assist him in searching the residence. His supervisor advised him that there were none in the area but to call the police for officer presence. (Doc. 58-2, p. 12). Agent Coslett also called the Pittston Police Department to request that an officer ...


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