{"id":1023,"date":"2007-05-30T05:41:47","date_gmt":"2007-05-30T05:40:27","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-05-30T05:40:27","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=1023","title":{"rendered":"Warrantless entry on bogus informant tip survives summary judgment as to officer directing entry, but others have qualified immunity"},"content":{"rendered":"

(Only one new case today; tomorrow will be excessive.)<\/em><\/p>\n

All police officers except the one making the decision to enter without a warrant get summary judgment in an unlawful entry case. The others were entitled to rely on his determination (essentially shifting all the liability to him). The facts are fairly compelling, but the District Court was faced with settled law that not every erroneous entry states a cause of action. The court noted in passing Los Angeles County v. Rettele<\/em>, decided May 21 and noted here<\/a>. This case is a good example of how easy it is for an informant to lie about something and cause a search. Mar v. City of McKeesport, 2007 U.S. Dist. LEXIS 38324 (W.D. Pa. May 25, 2007):<\/p>\n

In summary, a dispatcher from Allegheny County 911 informed the McKeesport police that they had received a call informing that Kahule Cochrane was located in Apartment 10G in Crawford Village, where he was armed, dangerous and accompanied by at least one other armed individual. Deputy police chief Mark Holtzman, the acting shift commander, received the information and verified that the 911 dispatcher had obtained the informant’s name and phone number. Kahule Cochrane was a suspect in a recently-committed murder, and was known to police to be violent and to reside in Crawford Village. Based on this information, Holtzman decided that exigent circumstances justified an immediate search without a warrant and assembled all available officers. Holtzman did not speak to the informant. Upon execution of the search of Apartment 10G only Plaintiffs, a father and his ten year old son, were found to be there.<\/p>\n

Several officers formed a perimeter and Lieutenant Lopretto knocked on the door and announced himself as a police officer. When Darrell Mar, Sr., unlocked the door, it was forced open, and four officers entered the apartment. Officers then threw Mr. Mar to the floor, forcefully restrained him and placed a gun to his head before permitting him to sit on a couch. Another officer grabbed Darrell Mar, Jr., by the shirt sleeve, forcefully shoved him against a wall and pointed a gun in his face. The officers used profanity and gave no explanation for their actions. There is no evidence in the record that either Plaintiff was struck by the officers or suffered physical injury. The search of the apartment lasted approximately five minutes.<\/p><\/blockquote>\n

The “rank and file” officers get qualified immunity for relying on the decision to enter without a warrant made by their superior officer. He, however, does not. As to the excessive force claim, plaintiffs lose. The officers could legally point a gun in the face of a child and threaten to shoot.<\/p>\n

In analyzing the excessive force factors, the Report and Recommendation did not evaluate the threat posed by the murder suspect, but instead simply stated that Plaintiffs “were unarmed, posed no threat to the safety of the officers, and never attempted to flee their home.” This focus is off-target. The relevant analysis is that the crime at issue was murder, that the suspect, Kahule Cochran, posed an immediate deadly threat to officers and others, that he was actively evading and resisting arrest, that he was armed and that officers reasonably anticipated that they would confront multiple armed and violent persons. The force used by the officers was significant, consisting of forcing open the door, brandishing weapons, physically moving Plaintiffs to positions of submission, and use of profanity. However, the use of force lasted for less than five minutes and neither of the Plaintiffs was physically injured.<\/p>\n

The Defendants cited to analogous cases in their summary judgment brief which were not addressed in the Report and Recommendation. In e.g. Torres v. United States,<\/em> 200 F.3d 179, 185 (3d Cir. 1999), the Court of Appeals explained that it was reasonable for officers to handcuff occupants of a house face-down on the floor during a search for narcotics due to the legitimate interests in preventing flight, preventing disposal of narcotics and agent safety. The Court explained that the risk of harm to all involved is minimized if officers exercise unquestioned command over the situation. Id.<\/em> at 186 (citing Michigan v. Summers<\/em>, 452 U.S. 692 (1981)). In Glass v. City of Philadelphia<\/em>, 455 F. Supp.2d 302 (E.D. Pa. 2006), the Court concluded after a non-jury trial that officers had not used excessive force by pointing guns at plaintiffs, yelling profanity, handcuffing them, and placing them in police car, even though plaintiffs were not actively resisting arrest. Also instructive, although not cited by Defendants, is Sharrar v. Felsing<\/em>, 128 F.3d 810, 821 (3d Cir. 1997), in which the Court held that officers had not used excessive force even though the SWAT team was used in a domestic violence situation and police forced occupants to lie face down in the dirt at gunpoint and threatened to blow their f***ing heads off. Accord Mellott v. Heemer<\/em>, 161 F.3d 117 (3d Cir. 1998) (reasonable for officers to load and point weapons and push occupant into a chair in effort to discourage expected resistance to eviction). [Here citing Los Angeles County v. Rettele<\/em> in fn. 6: “The Supreme Court explained that “officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search” even though the resulting frustration, embarrassment and humiliation of occupants is real.”]<\/p>\n

Under the factors for determining the reasonableness of Defendants’ use of force in this case, it is clear that their conduct was well within the parameters found to be lawful in Torres, Glass, Mellott<\/em> and Sharrar<\/em>. Even assuming, arguendo, that the use of force was excessive, the officers would be entitled to qualified immunity because it would not have been clear to a reasonable officer that their conduct was unlawful. Accordingly, the motion for summary judgment will be granted on the claims of excessive force as to all Defendants.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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