Courtesy of James R. Touchstone, Esq.
Bonivert v. City of Clarkston, 2018 U.S. App. LEXIS 4625 (9th Cir. Feb. 26, 2018)
In January 2012, City of Clarkston, Washington (the “City”) police officers, Sergeant Danny Combs and Officer Paul Purcell, received a “physical domestic” dispatch to the home of Ryan Bonivert. The dispatcher relayed to the officers that an argument between a man and a woman had become “physical at one point,” and that the dispatcher had been told that the male was currently inside the house and the female and a child were outside. The male was Bonivert and the female was his live-in girlfriend, Jessie Ausman. The child was their nine-month old daughter.
When Purcell and Combs arrived, they encountered five people standing in front of Bonivert’s house: Ausman, her sister, her mother, and two other men. Purcell interviewed the women, and Combs interviewed the two men. Both groups related that during an evening gathering with friends, Bonivert had been arguing with Ausman when she attempted to leave with their nine-month old daughter. The women claimed Bonivert then threw Ausman to the ground, but the men said they did not see “anything physical” occur between Bonivert and Ausman. Bonivert later stated that after Ausman and his guests had departed, he decided to go to bed. Bonivert remained inside the house during the entirety of the officers’ conversations with the witnesses outside.
The officers conferred and, after discussing the discrepancies between the men and women’s stories, decided to speak to Bonivert. The officers approached the front door of the residence, knocked, identified themselves as police, and instructed Bonivert to come to the door. There was no response. Combs knocked on other doors and windows, and used a flashlight to look inside. The officers found both the front and back doors locked. As Combs came to the side door, Bonivert realized it was unlocked and locked the deadbolt from inside. Hearing this, Combs believed that Bonivert did not want to speak or have any contact with him. Combs yelled loudly “Come out or we are coming in,” or something similar, but Bonivert continued to be unresponsive.
The officers talked to the witnesses again. Ausman told Officer Combs that there were no weapons in the house and that she did not believe that Bonivert was a danger to himself. Combs expressed concern that Bonivert had not talked with the officers and wanted to “find out what was going on.” Ausman indicated that Bonivert would be angry, but not violent, if the officers tried to break in. She gave Sergeant Combs permission to enter the house. Ausman did not indicate that she would reenter Bonivert’s home with the officers. The officers did not try to get a search warrant at any point.
The officers requested assistance from the Asotin County Sheriff’s Office (the “County”). The officers also radioed a “Code 4” message to the County, which meant that there were no problems with the police and the people they were with, and that everyone was safe and nobody was being injured. Two County deputies arrived. Combs requested their assistance to enter the house after describing the situation. Though the deputies were aware that the City officers had no warrant to enter the home or arrest Bonivert, they deferred to Combs as the highest ranking City officer on the scene. The police broke a window to unlock and partially enter the back door. Bonivert tried unsuccessfully to shut the door. The officers forced their way in, throwing Bonivert to the ground, and then drive-stunned him with a taser several times, handcuffed him, and arrested him.
Bonivert brought claims under 42 U.S.C. section 1983 against several defendants including the officers, alleging warrantless entry and excessive force in violation of Bonivert’s constitutional rights. The defendants moved for summary judgment, arguing qualified immunity should apply to the officers because they had consent to enter the house, and emergency and exigent circumstances applied. The district court granted summary judgment on the basis of qualified immunity.
The Ninth Circuit Court of Appeals reversed and remanded the district court’s grant of summary judgment on qualified immunity grounds on the Fourth Amendment claims for unlawful entry and excessive force.
The Court initially explained the standard for review of summary judgment based on qualified immunity, noting that qualified immunity does not attach to government officials when (1) “the facts ‘[t]aken in the light most favorable to the party asserting the injury . . . show [that] the [defendants’] conduct violated a constitutional right’ and (2) ‘the right was clearly established’ at the time of the alleged violation.”
The Court noted that since the Fourth Amendment “protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,’” the question of whether the officer violated a constitutional right typically depended on the “reasonableness” of officer actions. The Court observed that this reasonableness standard differed from that governing whether the right was “clearly established.” Under the “clearly established” reasonable standard, the Court noted, “even an officer who correctly perceives the facts establishing that his conduct was ‘unreasonable’ under the Fourth Amendment is entitled to immunity if he was mistaken ‘as to what the law require[d]’ under the circumstances,” as long as the mistake was reasonable.
The Court noted that “[a]mong constitutional rules, few are as well established, frequently applied, and familiar to police officers as the warrant requirement and its exceptions.” Because the officers did not get a warrant before entering Bonivert’s home, the Court observed, the entry was “presumptively unreasonable.” The officers claimed their entry was justified anyway by consent, emergency aid, and exigent circumstances exceptions to the warrant requirement. They claimed in the alternative that it was not clearly established law that these exceptions did not justify a warrantless entry under the circumstances. But the Court of Appeals ultimately found no exception to the warrant requirement justified the officers’ entry into Bonivert’s home. The Court also concluded that the unlawfulness of the officers’ entry under each exception was clearly established under pre-existing law.
Addressing the consent exception claimed by the officers, the Court found a parallel case in Georgia v. Randolph, which held that an occupant’s consent to a warrantless search of a residence was unreasonable as to a co-occupant who was physically present and objected to the search. The Ninth Circuit Court found no Fourth Amendment distinction between the warrantless search under Randolph and the officers’ entry into Bonivert’s home in the present case. Even though the officers had Ausman’s consent to enter the house, Bonivert was physically present inside and expressly refused to permit the officers to enter on two separate occasions by locking the side door and trying to prevent their entry through the back door later.
The Ninth Circuit Court of Appeals also cited U.S. v. Williams, where the Eighth Circuit held that a co-occupant’s consent to search was no longer valid once the defendant, who was physically present and shared common authority over that room, “slammed the door and put the dead bolt on.” The Ninth Circuit found a parallel in the present case with Bonivert’s actions. The Ninth Circuit also noted that even Officer Combs viewed Bonivert’s locking of the door as a sign Bonivert did not want to talk, much less consent to entry.
Finding the law clearly established by Randolph and Williams, the Ninth Circuit concluded Bonivert’s actions invalidated Ausman’s consent. The Court held that the officers were not entitled to qualified immunity under the consent exception to the Fourth Amendment’s warrant requirement.
The Court further held that the officers were not entitled to qualified immunity under the emergency aid exception because everyone besides Bonivert was safely outside of the house and Ausman had stated that Bonivert had no weapons inside and was not in danger of harming himself. Moreover, the officers had sent a “Code 4” message indicating the officers and people outside were not in danger. The Court also declared there was no justification for entry under the exigency exception because Ausman was outside already with her child, this negating any notion of probable cause for a possible crime in progress. Finally, the Court found that the evidence did not justify the district court’s conclusion that “no reasonable jury could find the use of force within the home excessive.”
The Court concluded that genuine issues of fact prevented a determination of qualified immunity at summary judgment such that the case must proceed to trial. The Court reversed the district court’s grant of summary judgment on qualified immunity grounds and remanded for further proceedings.
HOW THIS AFFECTS YOUR AGENCY
The Bonivert case contrasts with another
recent Ninth Circuit case we discussed in Client Alert Vol. 32 No. 34, Smith v. City of Santa Clara. Like plaintiff Bonivert here, the plaintiff in Smith argued that Randolph should apply in disqualifying officer actions without a warrant because plaintiff Smith was present and refused consent to a search, though a co-occupant had provided consent. The Ninth Circuit in Smith rejected this reasoning because the facts involved a probation search; the co-occupant was a probationer who was on probation and that the terms of her probation allowed warrantless searches of her person and residence. Unlike in Bonivert, the Court in Smith found Randolph did not apply because it was a consent case and probation searches were not analyzed as consent searches under U.S Supreme Court precedent. Agencies should be aware that such factual distinctions in seemingly similar circumstances can be significant in determining potential civil liability and whether evidence obtained during investigation will be excluded or included in legal proceedings.
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 Saucier v. Katz, 533 U.S. 194, 201 (2001), rev’d on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009).
 Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011).
 547 U.S. 103 (2006).
 521 F.3d 902, 907 (8th Cir. 2008)
 See http://www.jones-mayer.com/news/2017/12/13/vol-32-no-34-warrantless-search-of-probationers-residence-reasonable-despite-objection-of-co-occupant
 876 F.3d 987 (9th Cir. 2017).