12-663-cv
Flynn v. James

                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT
                              SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 28th day of February, two thousand thirteen.

PRESENT:    DENNY CHIN,
            CHRISTOPHER F. DRONEY,
                 Circuit Judges,
            JANE A. RESTANI,
                 Judge.*

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BRUCE FLYNN,
                  Plaintiff-Appellant,

                  -v.-                                12-663-cv

DEBRA A. JAMES, GEORGE DYER,
Investigator, New York State Police
Department, MICHAEL MADORE, Investigator,
New York State Police Department, JOSHUA
FOWLER, New York State Trooper, MCCARTY,
New York State Trooper,
               Defendants-Appellees.

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FOR PLAINTIFF-APPELLANT:      Bruce Flynn, pro se, Marcy, New
                              York.

FOR DEFENDANTS-APPELLEES            Kate H. Nepveu, Denise A. Hartman,
GEORGE DYER, MICHAEL MADORE,        Assistant Solicitors General for
JOSHUA FOWLER, AND MCCARTY:         Barbara D. Underwood, Solicitor
                                    General, and Eric T. Schneiderman,
                                    Attorney General of the State of
                                    New York, Albany, New York.

      *
          The Honorable Jane A. Restani, of the United States
Court of International Trade, sitting by designation.
           Appeal from the United States District Court for the

Northern District of New York (McAvoy, J.).
           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

           Plaintiff-appellant Bruce Flynn, proceeding pro se,
appeals from the district court's judgment entered January 24,

2012 dismissing his complaint in accordance with its Decision and

Order entered the same day.   Flynn asserted a claim under 42

U.S.C. § 1983 against defendants-appellees Debra A. James, George

Dyer, Michael Madore, Joshua Fowler, and McCarty for purportedly

violating his rights under the Fourth, Fifth, and Fourteenth

Amendments.   Compl. at 1, Flynn v. James, No. 8:11 Civ. 1036

(N.D.N.Y. Aug. 31, 2011), ECF No. 1.   This civil action was filed

below after Flynn pled guilty in state court to burglary in the

second degree, in violation of N.Y. Penal Law § 140.25(1)(d), and

criminal use of a firearm in the second degree, in violation of

N.Y. Penal Law § 265.08(2), for which crimes Flynn was sentenced

principally to two concurrent terms of ten years' imprisonment.

           On appeal, Flynn principally argues that Dyer and

Madore, investigators with the New York State Police Department

(the "Investigators"), illegally searched his home and seized his

property after Madore obtained an invalid consent to search from

Flynn.1   We assume the parties' familiarity with the underlying

     1
          Flynn had also argued below that Fowler and McCarty
executed an unlawful warrantless arrest in violation of his
rights under the Fourth Amendment. The district court dismissed,
finding that the arresting officers had probable cause. Flynn
does not challenge this ruling on appeal.

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facts, the procedural history of the case, and the issues on

appeal.

            We review de novo a district court's grant of a motion

to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure, accepting all factual allegations as true, and

drawing all reasonable inferences in the plaintiff's favor.      See

Famous Horse Inc. v. 5th Ave. Photo Inc., 

, 108 (2d

Cir. 2010).    While pro se complaints must contain sufficient

factual allegations to meet the plausibility standard, this Court

construes them to raise the "strongest [claims] that they

suggest."    Triestman v. Fed. Bureau of Prisons, 

,
474-75 (2d Cir. 2006) (per curiam) (internal quotation marks and

citation omitted).

            To state a claim under § 1983, Flynn was required to

plausibly allege that "(1) the challenged conduct was

attributable at least in part to a person who was acting under

color of state law and (2) the conduct deprived the plaintiff of

a right guaranteed under the Constitution of the United States."

Snider v. Dylag, 

, 53 (2d Cir. 1999).
            Under the Fourth and Fourteenth Amendments, a

warrantless search of a home is unreasonable unless an exception

applies, such as a search conducted pursuant to consent.    See

Schneckloth v. Bustamonte, 

, 219 (1973); United

States v. Garcia, 

, 422 (2d Cir. 1995).    The consent

must be voluntary, and voluntariness is determined by the

totality of the circumstances.    See United States v. Snype, 

, 131 (2d Cir. 2006).    "'The standard for measuring the

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scope of a suspect's consent under the Fourth Amendment is that

of 'objective' reasonableness . . . .'"    

(quoting Florida v. Jimeno, 

, 251 (1991)).

          Although Flynn consented to a search of his home, he

challenges the validity of the consent on the basis that it was

executed after he invoked his right to counsel.     Flynn's

invocation of his right to counsel, however, has no bearing on

the validity of his consent because a request for consent to

search is not an interrogation within the meaning of Miranda v.
Arizona, 

(1966).    See United States v. Faruolo, 

, 495 (2d Cir. 1974).    A defendant's "consent to search

is not 'evidence of a testimonial or communicative nature'" and

therefore it does not implicate the right to counsel. 

California, 

, 761 (1966)).

          Flynn next contends that his Fifth Amendment right

against self incrimination was violated because the cassette tape

obtained during the search of his home contained incriminating

statements.   That argument must be rejected, as the Fifth

Amendment only proscribes "extract[ing] from the person's own

lips an admission of guilt, which would thus take the place of

other evidence."     United States v. Patane, 

, 637
(2004) (internal quotation marks, citation, and emphasis in

original omitted).    Here, the cassette had been voluntarily

prepared by Flynn before the involvement of any police officers,

and thus it "could not 'be said to contain compelled testimonial


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evidence.'"   United States v. Greer, 

, 613 (2d Cir.

2011) (quoting Fisher v. United States, 

, 409-10

(1976)).

           Flynn also argues that the Investigators exceeded the

scope of his consent, i.e., that they searched his entire home

when he gave consent only as to his "[d]iabetic medication and

test kit and black long rifle . . . ."     The consent Flynn

executed, however, provides:   "I grant permission for the State

Police to search the entire premises, including the contents of

any containers or boxes found thereon."     Because we employ an

objective standard for measuring the scope of a defendant's

consent, we conclude that the Investigators did not exceed the

scope of Flynn's consent in searching his entire home.

           Flynn argues for the first time on appeal that his

consent was coerced and that he consented only because the

Investigators agreed to retrieve his diabetic medicine from his

home while conducting the search.     Flynn did not make this

allegation in his complaint, nor did he argue this issue in the

proceedings below.   See generally Pl.'s Opp'n to Defs.' Mot. to
Dismiss, Flynn v. James, No. 8:11 Civ. 1036 (N.D.N.Y. Nov. 16,

2011), ECF No. 12.   Arguments raised for the first time on appeal

are deemed waived.   See Baker v. Dorfman, 

, 423 (2d

Cir. 2000).   Accordingly, we decline to consider Flynn's belated

argument that his consent was coerced.




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            Flynn similarly argues for the first time on appeal

that the district court erred in dismissing his complaint without

granting him leave to amend.    Flynn did not seek leave to amend

below.    Thus, we decline to consider Flynn's argument in this

regard.

            We have considered all of Flynn's remaining arguments

and conclude they are without merit.    Accordingly, the judgment

of the district court is AFFIRMED.

                                FOR THE COURT:
                                Catherine O'Hagan Wolfe, Clerk




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