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Milone v. Township of North Brunswick

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


February 5, 2001

JOHN MILONE,
PLAINTIFF,
V.
TOWNSHIP OF NORTH BRUNSWICK, KENNETH P. MCCORMICK, JAMES BENANTI, AND JOSEPH PERNA,
DEFENDANTS.

The opinion of the court was delivered by: Debevoise, Senior District Judge

NOT FOR PUBLICATION

OPINION

This matter is before the court on defendant Joseph Perna's motion for summary judgment. For the reasons that follow, the motion is denied.

FACTUAL BACKGROUND

The uncontested facts and contested factual allegations underlying this civil action are set forth in the Final Pretrial Order ("FPO") signed by counsel for all parties to this action, signed by United States Magistrate Judge Susan D. Wigenton, and filed with the court on November 21, 2000. *fn1 The uncontested facts are set forth in the stipulation of facts in the FPO; the contested factual allegations are set forth in plaintiff and defendants' statements of contested facts in the FPO. Only those uncontested facts and contested factual allegations necessary to disposition of this motion are recounted herein; all uncontested facts and contested factual allegations recounted herein are drawn from the FPO. As will be shown, genuine issues of material fact exist in this action and await determination by the finder of fact at trial. Summary judgment must therefore be denied.

Stipulated Facts

Those few facts upon which the plaintiff and the defendants agree are as follows. On December 13, 1996, Milone was driving his car in North Brunswick, New Jersey. FPO at 6, 14. Riding as his passenger was a woman named Adeline. *fn2 Id. at 4. Milone stopped his car at a residence in North Brunswick, and Adeline got out of Milone's car and approached the residence. Ibid. The parties dispute whether Adeline entered the residence, but they do not dispute that she eventually returned to Milone's car and resumed her place as his passenger, whereupon Milone drove away from the residence with Adeline through the streets of North Brunswick. Ibid.

Milone's car was stopped in North Brunswick by defendant James Benanti ("Benanti"), a detective with the North Brunswick Police Department driving an unmarked police car. Id. at 4, 7, 14. Benanti approached Milone's car and asked Milone for his driver's license, motor vehicle registration, and proof of automotive insurance, which Milone provided. Id. at 4, 7, 15. Benanti eventually requested that Milone get out of his car, and Milone did so. Id. at 4. At that time, Milone refused to consent to a search of his car. Ibid.

Next on the scene was defendant Perna, an officer with the North Brunswick Police Department driving a marked police car. Id. at 4, 7, 16. Benanti reiterated his request that Milone consent to a search of his car; Milone again refused to consent. Id. at 5.

Some time later, defendant Kenneth McCormick ("McCormick"), a sergeant with the North Brunswick Police Department, arrived on the scene. Ibid. McCormick eventually signaled to Benanti and Perna that they should search Milone's car, and Benanti and Perna did so. Ibid.

Beyond these few facts, the plaintiff and the defendants' stories diverge radically.

Plaintiff's Contested Allegations

Milone alleges that on December 13, 1996, he drove Adeline, the friend of a friend, from South Brunswick to a residence in North Brunswick so she could speak with a person who did not have a telephone about Adeline's finding a babysitter for her son. FPO at 6. Once Milone and Adeline arrived at the residence, the address and location of which only Adeline knew, Adeline got out of Milone's car and walked to the door of the residence. Ibid. She summoned the occupants of the residence either by knocking on the door or by ringing the bell. Ibid. The door to the residence opened, and there appeared in the doorway first a young girl and then a male. Ibid. Adeline and the male spoke on the porch of the residence for approximately five minutes, and then Adeline returned to Milone's car. Ibid. Adeline never entered the residence. Ibid.

Adeline reentered Milone's car and told him she had taken care of finding a babysitter. Id. at 6-7. Milone proceeded to drive Adeline home. Id. at 7. He drove lawfully for several blocks, looking for the entrance ramp to the highway, until his car was stopped by Benanti, who was dressed in plainclothes and was driving an unmarked police car. Ibid.

Benanti approached Milone's car, spoke with him, and eventually asked Milone if he could search Milone's car. Ibid. Milone asked Benanti if he had a search warrant; when Benanti replied that he did not, Milone refused to consent to a search of his car. Ibid. Benanti told Milone that Benanti had a right to detain Milone until drug-sniffing police dogs arrived on the scene. Ibid. Milone asked Benanti why he had been stopped, but Benanti refused to tell him. Ibid. Milone then gave Benanti his driver's license, car registration, and proof of automotive insurance and sat in his car with Adeline. Ibid.

After approximately thirty minutes, Perna arrived on the scene in uniform and in a marked police car. FPO at 7. Benanti ordered Milone to get out of his car and to stand next to Perna's marked police car. Id. at 7-8. Perna, in turn, ordered Adeline to get out of Milone's car and began questioning her. Id. at 8. Milone again asked Benanti why he had been stopped; Benanti now replied that Milone and Adeline were in a bad area. Ibid. Benanti proceeded to put his hands inside the pockets of Milone's sweatshirt. Ibid.

Once McCormick arrived on the scene, he spoke first with Benanti and then with Milone. Ibid. Milone asked McCormick why he had been stopped; McCormick replied either that Milone and Adeline were in a bad area or that the area was under police surveillance. Id. at 9. McCormick then asked Milone to consent to a search of his car; Milone again refused to consent. Ibid. McCormick then signaled Benanti and Perna by waving his arms and instructed them to go ahead with a search of Milone's car. Ibid. McCormick did not make a statement to Benanti or Perna that Milone had consented to the search. Ibid.

As soon as Benanti and Perna began searching his car, Milone repeatedly and vociferously objected to the warrantless search and declared his refusal to consent to it. Ibid. The search continued, over Milone's objections, for approximately half an hour. Ibid. Benanti and Perna thoroughly searched the interior and the trunk of Milone's car, but found no contraband. Id. at 9-10. They did, however, damage the interior of Milone's car and certain personal effects therein. Id. at 10. After the search had concluded, Milone and Adeline were allowed to leave the scene in Milone's car. Ibid.

Defendants' Contested Allegations

The defendants allege that on December 13, 1996, Benanti was assigned to the Narcotics Unit of the North Brunswick Police Department and was engaged in surveillance, in an unmarked car, of various locations in North Brunswick with a previous history of drug activity. FPO at 14. One of these locations was 708 Laurel Place, at which residence (the "residence") search warrants had been executed in 1994 and 1996, and from which certain controlled substances and drug paraphernalia had been removed pursuant to searches of the residence performed in execution of those warrants. Id. at 14, 17. Benanti had also been informed by Robert Baron ("Baron"), a detective with the North Brunswick Police Department who is not a defendant in this case, that drug activity had resumed at the residence. Id. at 14-15.

While Benanti had the residence under surveillance, Milone and Adeline, then unknown to Benanti, approached the residence in Milone's car and parked approximately 100 yards away therefrom. Id. at 15. Adeline got out of Milone's car, walked up to the door of the residence, knocked or rang the bell, and was admitted inside after several seconds. Ibid. Adeline exited the residence after one to two minutes and reentered Milone's car. Ibid. Milone and Adeline remained parked for several seconds and then drove away through the streets of North Brunswick. Ibid.

Benanti had reasonable suspicion and probable cause to stop Milone's car several blocks from the residence based upon his knowledge of previous drug activity at that location, the information he had received from Baron about resumption of drug activity at the residence, his training and experience as a narcotics detective, his observations of Adeline's conduct, and his observations of Milone and Adeline's driving with no apparent destination. *fn3 FPO at 15, 16. Benanti stopped Milone's car several blocks away from the residence so he would not alert those within the residence to the surveillance. Id. at 15.

After stopping Milone's car, Benanti approached the car and asked Milone for his driver's license, motor vehicle registration, and proof of automotive insurance, which Milone gave him. Ibid. Benanti spoke with Milone briefly and then ordered him out of his car; Milone complied, and walked to the rear of his car. Ibid. Benanti patted Milone down for Benanti's safety. Ibid. Benanti asked Milone about his passenger; Milone identified her as a friend of his named Adeline whom he was giving a ride. Ibid. Benanti then asked Milone for consent to search Milone's car; Milone refused to consent. Ibid. Benanti called for backup so he could speak with Adeline. Ibid.

Milone asked Benanti why he had been stopped; Benanti replied that the residence Milone had pulled up to was a known location of drug activity, and that Adeline had entered that residence. Id. at 16. Benanti also said that Milone seemed to have no specific destination as he drove away from the residence. Ibid.

Once Perna arrived on the scene, Perna stayed with Milone while Benanti spoke with Adeline. Ibid. Benanti asked Adeline who she was and what she had been doing at the residence; when her answers failed to jibe with Milone's, Benanti called headquarters to determine whether warrants were outstanding for Milone or Adeline. Ibid. Based on his suspicions, Benanti again asked Milone for consent to search his car, and again Milone refused. Ibid.

McCormick then arrived on the scene. Ibid. Benanti described the stop and subsequent events to McCormick, and asked him whether drug-sniffing dogs could be summoned to the scene to sniff Milone's car. FPO at 16. McCormick replied that the dogs in fact could be brought quickly to the scene. Ibid.

McCormick then told Milone he planned to bring drug-sniffing dogs to the scene to aid the police in searching Milone's car for drugs, and reiterated the same reasons for Milone's being stopped by Benanti that Benanti had given Milone. Ibid. Milone then twice gave McCormick consent to search his car. Id. at 16, 17.

McCormick told Benanti that Milone had consented to a search of his car, and ordered Benanti and Perna to search Milone's car. Id. at 17. Benanti and Perna searched the car for less than five minutes and found no contraband. Ibid. Milone made no complaint of damage to the interior of his car or to his personal effects therein. Ibid. Milone and Adeline were allowed to leave the scene and did so without complaint or further incident. Ibid.

PROCEDURAL HISTORY

In his amended complaint in this action, filed on August 13, 1999, Milone claimed the Township of North Brunswick, Benanti, Perna, and McCormick unreasonably searched and seized his person and his car, deprived him of his liberty without due process of law in detaining him without probable cause, and deprived him of his property without due process of law, thereby depriving him of his rights, privileges, and immunities under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Milone's Amended Complaint, 8/13/99, at 1-2. Milone claimed the defendants subjected him to these deprivations of his constitutional rights under color of state law, and so prayed for money damages under 42 U.S.C. § 1983 and for attorney's fees under 42 U.S.C. § 1988. *fn4 Milone's Am. Compl. at 7, 8.

Milone's voluntary dismissal with prejudice of all claims against the Township of North Brunswick was filed on April 25, 2000. An order of the court was filed on May 22, 2000 dismissing Milone's claim that Benanti, Perna, and McCormick deprived him of his rights, privileges, and immunities in violation of the Fifth Amendment.

Milone's remaining federal-law claims are as follows: (1) Benanti, Perna, and McCormick unreasonably searched and seized Milone's person and his car; (2) Benanti, Perna, and McCormick detained Milone without probable cause; (3) Benanti, Perna, and McCormick deprived Milone of his liberty without due process of law; and (4) Benanti, Perna, and McCormick deprived Milone of his property without due process of law.

Defendant Perna now moves for summary judgment on two grounds: Milone fails to state a claim against Perna upon which relief may be granted, and Perna enjoys qualified immunity from suit on Milone's claims. Before tackling the merits of Perna's motion, it remains to reiterate the well-rehearsed but all-important standards for disposing of a motion for summary judgment.

STANDARDS FOR DISPOSING OF A MOTION FOR SUMMARY JUDGMENT

A motion for summary judgment shall be granted only if there is "no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A genuine issue exists if the record taken as a whole could lead a rational trier of fact to find for the party opposing summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).

In disposing of a motion for summary judgment, it is not the province of the trial court to weigh the evidence and to decide the case on its merits; rather, the trial court shall simply determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S. Ct. at 2511. In determining whether there is a genuine issue for trial, the trial court must resolve all doubts and must make all reasonable inferences in the non-movant's favor. Apalucci v. Agora Syndicate, Inc., 145 F.3d 630, 631 (3rd Cir. 1998) (reviewing de novo trial court's grant of summary judgment).

These standards for disposing of a motion for summary judgment remain unchanged when a defendant moves for summary judgment based on the affirmative defense of qualified immunity. Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992), cited in Karnes v. Skrutski, 62 F.3d 485, 494 (3rd Cir. 1995).

SUBJECT-MATTER JURISDICTION

Jurisdiction over the subject matter of this action lies under 28 U.S.C. §§ 1331, 1343, and 1367.

DISCUSSION

As noted above, Milone's claims are as follows: (1) Benanti, Perna, and McCormick unreasonably searched and seized Milone's person and his car; (2) Benanti, Perna, and McCormick detained Milone without probable cause; (3) Benanti, Perna, and McCormick deprived Milone of his liberty without due process of law; and (4) Benanti, Perna, and McCormick deprived Milone of his property without due process of law.

Milone's first and second claims allege Fourth Amendment violations. *fn5 His third and fourth claims, alleging Fourteenth Amendment violations, are subsumed by these Fourth Amendment claims. Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871, 104 L. Ed. 2d 443 (1989) (holding claims that law enforcement officers used excessive force in the course of an arrest, investigatory stop, or other seizure must be analyzed under the specific provisions of the Fourth Amendment and its attendant standards and protections, and not under the more general provisions of the Due Process Clause of the Fourteenth Amendment and its attendant standards and protections), applied more generally in, e.g., Burns v. Bitnar, 221 F.3d 1333 (table), 2000 WL 876550, at *1 (6th Cir. 2000) (unpublished disposition) (holding claims that law enforcement officers conducted an unreasonable search and seizure are governed by Fourth Amendment, and not by the Due Process Clause of the Fourteenth Amendment). The whole of Milone's action thus decocts to his state-law claims (whatever they may be) and his federal claims against Benanti, Perna, and McCormick under the Fourth Amendment, for which he seeks redress under 42 U.S.C. §§ 1983 and 1988. On Perna's motion for summary judgment, only Milone's allegations and claims against Perna need be considered.

Milone's Cognizable Claim under Section 1983

For Milone to state a cognizable claim against Perna under section 1983, he must identify the precise constitutional rights of which he claims Perna deprived him, and must demonstrate that Perna deprived him of these constitutional rights under color of state law. 42 U.S.C. § 1983 (1871, as amended 1996) (West 1994 & 2000 Supplement); Baker v. McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 2692, 61 L. Ed. 2d 433 (1979).

There is no question that Perna, as an on-duty police officer, was acting under color of state law during the entirety of the incident on December 13, 1996 that occasioned this suit. Russoli v. Salisbury Township, 2000 WL 1622752 (E.D. Pa. Oct. 20, 2000). Indeed, Perna has judicially admitted as much. Milone's Am. Compl. at 3, ¶¶ 9, 10; Perna's Answer etc., 11/3/99, at 2, ¶¶ 9, 10. There is also no question that Milone enjoys the right under the Fourth Amendment to be free, in his person and his effects, from unreasonable searches and seizures conducted by municipal police officers. U.S. Const. amend. IV; Mapp, 367 U.S. at 655, 81 S. Ct. at 1691. The gravamen of Milone's claims against Perna is that Perna's search of Milone's car - the occurrence of which is undisputed - was unreasonable and therefore unconstitutional under the Fourth Amendment.

"[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967) (footnotes and citations omitted). It is undisputed that Perna (and Benanti) searched Milone's car without a search warrant.

Certain exceptions to the warrant requirement - search incident to a lawful arrest, contraband or weapons in plain view, and exigent circumstances, Parkhurst v. Trapp, 77 F.3d 707, 711 (3rd Cir. 1996) - do not obtain in this case. Only three exceptions to the warrant requirement might possibly avail Perna (and Benanti): consent, limited search upon reasonable suspicion, and full-fledged search upon probable cause under the "automobile exception."

"[V]oluntarily given consent is an exception to the search warrant requirement and is therefore constitutionally permissible." United States v. Velazquez, 885 F.3d 1076, 1081 (3rd Cir. 1989). However, Milone and the defendants have stipulated that Benanti twice asked Milone for permission to search Milone's car and twice Milone refused to consent, FPO at 4,5; Milone alleges that McCormick asked Milone for permission to search Milone's car and Milone refused to consent, id. at 9; and Milone alleges that he repeatedly and vociferously declared to Benanti, Perna, and McCormick his refusal to consent to a search of his car at the commencement of, and during the course of, Benanti and Perna's warrantless search, ibid.

Without obtaining voluntary consent, "a police officer may detain and investigate citizens when he or she has a reasonable suspicion that `criminal activity may be afoot.'" United States v. Roberson, 90 F.3d 75, 77 (3rd Cir. 1996) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968)). Pursuant to a Terry stop, search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d 1201 (1983) (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880)).

However, this Terry search cannot be extended into the trunk of an automobile. Terry, 392 U.S. at 21, 88 S. Ct. at 1800; United States v. Watson, 1995 WL 151869, at *3 (N.D. Ill. Mar. 31, 1995); Pennsylvania v. Stevenson, 560 Pa. 345, 359, 744 A.2d 1261, 1268 (2000); McVea v. Texas, 635 S.W.2d 429, 433 (Tex. App. 1982). Moreover, Milone alleges that the initial stop of his car by Benanti was "without justification or authority," i.e. without reasonable suspicion of criminal activity. Milone's Am. Compl. ¶ 13, at 4.

Without voluntary consent, beyond the strictly delimited boundaries of a Terry search, and with no other exception to the warrant requirement in play, police officers may, under the "automobile exception," search the interior compartment or trunk of an automobile if and only if the automobile is readily mobile and if and only if probable cause exists to believe the automobile contains contraband. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed. 2d 1031 (1996) (per curiam), quoted with approval in Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S. Ct. 2013, 2014, 144 L. Ed. 2d 442 (1999). Though Milone does not allege his car was not readily mobile, he does allege the defendants acted without probable cause. Milone's Am. Compl. ¶ 13, at 4.

Milone has identified the precise constitutional rights of which he claims Perna and the other defendants deprived him, and has stated a cognizable claim under section 1983 that the defendants' search of his car violated the Fourth Amendment's proscription against unreasonable searches and seizures. In this regard, Perna's motion for summary judgment must be denied.

Perna's Affirmative Defense of Qualified Immunity

Perna seeks summary judgment in his favor on the ground that he is qualifiedly immune from Milone's suit. As a governmental official engaged in a discretionary function, Perna enjoys qualified immunity if his conduct on the date in question did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982), quoted in Sherwood v. Mulvihill, 113 F.3d 396, 398-99 (3rd Cir. 1997). Though this standard may seem immiscible with the concept of an unreasonable search and seizure in violation of the Fourth Amendment, "[t]here is no conflict in saying a police officer who acted unreasonably [by conducting an unreasonable search in violation of the Fourth Amendment] nevertheless reasonably (but mistakenly) believed his conduct was reasonable." Karnes, 62 F.3d at 492 n.3.

"Where a defendant asserts a qualified immunity defense in a motion for summary judgment, the plaintiff bears the initial burden of showing that the defendant's conduct violated some clearly established statutory or constitutional right." Sherwood, 113 F.3d at 399. Milone must make a two-part showing to meet this burden: he must identify the specific right Perna allegedly violated, and he must show that at the time of the alleged violation the right was clearly established. Pritchett, 973 F.2d at 312 (4th Cir. 1992); accord Karnes, 62 F.3d at 491. These are questions of law. Karnes, 62 F.3d at 491-92; Pritchett, 973 F.2d at 312. "Only if the plaintiff carries this initial burden must the defendant then demonstrate that no genuine issue of material fact remains as to the objective reasonableness of the defendant's belief in the lawfulness of his actions." Sherwood, 113 F.3d at 399 (internal quotation marks and citation omitted). This inquiry involves application of the law to the facts, and may require factual determinations if the nature of the defendant's conduct is disputed. Karnes, 62 F.3d at 492 (citing Pritchett, 973 F.3d at 312).

As noted above, Milone has identified the precise constitutional right of which he claims Perna and the other defendants deprived him: the right to be free from an unreasonable warrantless search and seizure under the Fourth Amendment. See supra p. 14. Thus, to meet his initial burden in opposing Perna's motion, Milone must show that on December 13, 1996, his rights under the Fourth Amendment were clearly established.

On the date Perna and Benanti searched Milone's automobile, Milone's Fourth Amendment right to be free from an unreasonable warrantless police search of his automobile was clearly established. The voluntary consent, limited Terry search, and automobile exceptions to the warrant requirement had all been carefully enounced, refined, and delimited by that time. *fn6 Though Fourth Amendment search and seizure doctrine is ever-developing, these principles were not in flux on December 13, 1996, the date Perna and Benanti searched Milone's car. Milone has met his initial burden of showing that Perna's alleged conduct was violative of a clearly established statutory or constitutional right. Sherwood, 113 F.3d at 399. It is now incumbent upon Perna to demonstrate that no genuine issue of material fact remains as to the objective reasonableness of his belief in the lawfulness of his actions. Ibid.

Perna enjoys qualified immunity if a reasonable officer could have believed it was constitutionally proper to search Milone's car in light of clearly established law and the information Perna possessed at the time of the search. Karnes, 62 F.3d at 491 (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3040, 97 L. Ed. 2d 523 (1987)) (quotation marks omitted). This inquiry is objective and fact-specific, ibid. (citing Anderson, 483 U.S. at 641, 107 S. Ct. at 3040), and may require factual determinations if the nature of the defendant's conduct is disputed, id. at 492. "If there are genuine issues of historical fact respecting the officer's conduct or its reasonableness under the circumstances, summary judgment is not appropriate, and the issue must be reserved for trial." Pritchett, 973 F.3d at 313 (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411 (1985)).

Though Perna would have been entitled to rely on information, even erroneous information, concerning consent or probable cause that might have been provided to him by Benanti or McCormick prior to the search, Perna's reliance upon this information must be objectively reasonable for him to enjoy qualified immunity. Oliver v. Woods, 209 F.3d 1179, 1191 (10th Cir. 2000). Perna will not enjoy qualified immunity if, irrespective of his reliance upon facts that might have been reported to him by Benanti or McCormick, he breached his duty reasonably to inquire into or further to investigate these reported facts. Mendocino Envtl. Center v. Mendocino County, 192 F.3d 1283, 1293 n.16 (9th Cir. 1999).

Milone and the defendants squarely dispute whether Milone consented to Perna's search. Milone and the defendants, including Perna, have stipulated that Milone twice refused to give Benanti consent to search his car. FPO at 4, 5. Perna and the other defendants allege that Milone twice gave McCormick his consent, id. at 16, 17, and that McCormick told Benanti Milone had consented, id. at 17. Contrariwise, Milone alleges that he first refused to give Benanti his consent, then refused to give McCormick his consent, and finally repeatedly and vociferously told Benanti, Perna, and McCormick, once Benanti and Perna had begun searching Milone's car, that he did not consent to the search. Id. at 7, 9. He also alleges that McCormick never told Benanti that Milone had consented to the search. Id. at 9.

Giving Milone's factual allegations the provisional credit to which they are entitled on Perna's motion for summary judgment, Apalucci, 145 F.3d at 631, Milone repeatedly and vociferously told Perna (and Benanti and McCormick), once Benanti and Perna began their search, that he did not consent to having his car searched. It cannot be determined on Perna's motion for summary judgment whether it was objectively reasonable for Perna to continue searching Milone's car over Milone's presumed protestations, for it also cannot be determined at this time whether Milone had ever consented to the search, whether he did in fact protest the search and refuse or withdraw his consent to it once it began, whether McCormick ever did tell Benanti (who in turn might have told Perna) that Milone had consented to the search, and whether Milone's refusal to consent or withdrawal of consent obligated Perna to determine whether other constitutionally valid grounds (namely probable cause) supported the search.

These facts are material: they bear not only upon the question whether the search was unreasonable in violation of the Fourth Amendment, but also upon the question whether Perna's belief in the legality of his search was objectively reasonable. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. So, too, are the issues stemming from these material facts genuine, because a rational trier of fact could easily deem Milone's version of events to be more credible than the defendants' and find in Milone's favor. Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356. Perna has failed to demonstrate the absence of a genuine issue of material fact concerning whether he believed at all that Milone had consented to the search, and whether such a belief would have been objectively reasonable. The genuine issues of material fact concerning whether Milone consented, what information Perna possessed about Milone's consent or lack thereof, and whether Perna held an objectively reasonable belief that Milone had consented all must be reserved for trial. Karnes, 62 F.3d at 491; Pritchett, 973 F.3d at 313. Therefore, for Perna's motion to be granted, Perna must demonstrate the absence of a genuine issue of material fact concerning whether he had an objectively reasonable belief that probable cause existed for the search.

Whether Perna had an objectively reasonable belief that probable cause existed for the search simply cannot be determined from the record as it stands. It is unclear whether Perna believed at all that probable cause existed to search Milone's car; whether, given Milone's presumed refusal to consent, he had a duty to investigate the facts preceding the search in order to form a belief whether probable cause did or did not exist; what information he had in his possession that might give rise to a belief that probable cause for the search existed; and, whether such a belief would be objectively reasonable under the circumstances. Hence, Perna has failed to establish his entitlement to qualified immunity. For this reason, Perna's motion for summary judgment must be denied.

CONCLUSION

For the foregoing reasons, Perna's motion for summary judgment must be denied in its entirety. An appropriate order shall enter.

DICKINSON R. DEBEVOISE, U.S.S.D.J.


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