CA4: Having no keys and breaking in through window belies apparent authority to consent

Officers came to plaintiff’s house with his former girlfriend who they contend consented to the entry. She, however, had no key to the house and they broke in through a window. Plaintiff stated a § 1983 claim because it wasn’t even possible for her to have apparent authority to consent on the undisputed facts. Webb v. Brawn, 2014 U.S. App. LEXIS 7918 (4th Cir. April 28, 2014):

Given these governing principles, Webb’s complaint clearly alleges facts sufficient to support a plausible claim that Upchurch did not possess authority to consent to the search. His complaint alleges that: (1) he and Upchurch had broken up and Upchurch no longer resided at the house, (2) Upchurch did not possess a key to the house, (3) the doors to the house were locked when Upchurch arrived with the law enforcement officers, and (4) Upchurch and the officers gained access only by breaking into the house.

Contrary to the officers’ assertions, the public records properly attached to the complaint, including Officer Brawn’s police report, do not contradict Webb’s allegations. Rather, Officer Brawn’s report corroborates Webb’s account. For Officer Brawn states in her police report that at the time of the search, Upchurch was no longer residing at the house, no longer possessed a key to the residence, and that Webb objected to the officers entering his property. Moreover, Officer Brawn’s report further states that when Upchurch arrived with the police “the door was locked and Mr. Webb was not home,” but that Upchurch nevertheless “was able to get into the house to get her things.” In view of these facts, a reasonable jury could infer that Upchurch, and the officers accompanying her, broke into Webb’s home. Accordingly, Webb has alleged a plausible Fourth Amendment claim. Whether Webb can prove it, particularly in the face of any defenses the officers may raise, is a different story.