USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1370
STEPHEN S. CROOKER AND PAMELA A. CROOKER,
Plaintiffs, Appellees,
v.
PAUL METALLO, ET AL.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Boudin, Circuit Judges.
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Stephen S. Crooker and Pamela A. Crooker on brief pro se.
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Scott Harshbarger, Attorney General, and William J. Meade,
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Assistant Attorney General, on brief for appellants.
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September 29, 1993
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SELYA, Circuit Judge. The issue presented in this
SELYA, Circuit Judge.
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appeal is whether the defendants, parole officers, violated a
clearly established constitutional right of which a
reasonable person would have known when, in August 1989, they
arrested plaintiff Stephen S. Crooker at his home for sundry
parole violations. The officers conducted a protective sweep
incident to the arrest. Stephen Crooker and his wife,
Pamela, brought suit, pursuant to 42 U.S.C. 1983, alleging
that the search violated their Fourth Amendment rights.
Particularly, they allege that, during the sweep, an officer
lifted their mattress from its box spring and looked between
the two.1 The district court denied the defendants' claim
of qualified immunity. The defendants appeal. We reverse.
When defendants executed the arrest warrant for Stephen
Crooker, they "possesse[d] a reasonable belief based on
specific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warrant[ed]
the officer[s] in believing," that the Crookers' home
harbored an individual, one Vincent Tondryk, who "pos[ed] a
danger to the officer[s] or others." Maryland v. Buie, 494
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U.S. 325, 327 (1990) (citations omitted); see also Michigan
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1. The defendants deny that, in fact, the mattress was
lifted from the box spring. That factual dispute remains
unresolved. Our determination of the issue of qualified
immunity does not depend on resolution of that dispute as we
assume arguendo that the mattress search took place in the
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manner asserted by the plaintiffs.
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v. Long, 463 U.S. 1032, 1049-50 (1983); Terry v. Ohio, 392
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U.S. 1, 21 (1968). This reasonable belief permitted a
protective sweep of the premises, i.e., "a quick and limited
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search of premises, incident to [the] arrest and conducted to
protect the safety of police officers or others." Buie, 494
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U.S. at 327; see also United States v. Curzi, 867 F.2d 36, 39
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n.2 (1st Cir. 1989). The defendants, therefore, were
justified in searching the Crookers' home for Tondryk and
looking in places where Tondryk might have been hiding.
Although the district court so found, it nevertheless denied
the defendants' claim of qualified immunity on the ground
that the search between the mattress and box spring was not
within the proper confines of a protective sweep because it
would not be reasonable to expect a person to be hiding in
those environs. Thus, the court reasoned, the search was not
permissible in the absence of a search warrant.
It is true that Buie speaks of a protective sweep
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"narrowly confined to a cursory visual inspection of those
places in which a person might be hiding." Buie, 494 U.S. at
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327. The facts of Buie, however, did not present the issue
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of the permissibility of a limited search for accessible
weapons (which it is not unreasonable to expect might be
hidden between a mattress and box spring) conducted
simultaneously with the search for a dangerous confederate of
the arrestee. Thus, we cannot say, even today, that Buie
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forecloses the possibility that such a scenario is lawful.
Indeed, the Second Circuit recently determined that a
protective sweep can include a search for weapons within easy
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reach of an individual whom the officers have reasonably
concluded is dangerous. See United States v. Hernandez, 941
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F.2d 133, 137 (2d Cir. 1991); see also United States v.
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Lopez, 989 F.2d 24 (1st Cir. 1993) (upholding a weapons
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search where the police had ample basis for believing that a
dangerous weapon was lodged close by, that the defendant
might not be acting alone, and that the premises were not
secure), petition for cert. filed, (U.S. Jun. 23, 1993) (No.
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93-5032); cf. United States v. Irizarry, 673 F.2d 554, 559 n*
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(1st Cir. 1982) (suggesting that a search for weapons would
be unjustified where all persons in a hotel room were under
control and the agents knew that no one else was on the
premises).
In analyzing a claim of qualified immunity, moreover, we
are concerned with clearly established constitutional or
statutory rights of which a reasonable officer would have
known at the time he took action, here, in August 1989. See,
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e.g., Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 228
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(1st Cir. 1992) (explaining that "the touchstone of an
inquiry into qualified immunity is whether the state actor's
behavior was objectively reasonable, as a matter of federal
law, at the time and under the circumstances then
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obtaining"); Amsden v. Moran, 904 F.2d 748, 751 (1st Cir.
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1990) (similar), cert. denied, 498 U.S. 1041 (1991). The
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protective sweep in Hernandez occurred, like the instant
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sweep, in 1989, and, significantly, that court drew its
reasoning not only from Buie, but also from Long and Terry -
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two opinions of the Court that predated 1989 and dwelt on the
balance that must be struck between the need for law
enforcement officers to protect themselves and others and the
invasion which a search entails. See Long, 463 U.S. at 1049-
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52; Terry, 392 U.S. at 23-27; see also United States v.
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Elkins, 732 F.2d 1280, 1285 (6th Cir. 1984) ("Once having
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entered the premises, the agents were then required to secure
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all persons therein and to make a protective sweep for the
weapons Elkins was known to favor, for the safety of all
concerned.") (Emphasis supplied).
In sum, it may well be that, during the course of an
otherwise justified protective sweep for a dangerous
individual, thought to be in hiding, the Fourth Amendment
permits a simultaneously conducted limited search of places
which might contain a weapon readily accessible to that as-
yet-undiscovered individual. We need not, and do not, reach
that question in this case, however, for the operative
inquiry on qualified immunity is not whether the defendants
actually abridged the plaintiffs' constitutional rights, but
whether defendants' conduct was objectively unreasonable,
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given the constitutional understandings then current. See
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Anderson v. Creighton, 483 U.S. 635, 640 (1987); Davis v.
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Scherer, 468 U.S. 183, 190 (1984); Quintero de Quintero, 974
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F.2d at 228; Amsden, 904 F.2d at 751. The uncertainty that
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shrouds the question here means, a fortiori, that the
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defendants, in 1989, violated no clearly established Fourth
Amendment right of which reasonable officers would have known
when they searched between the mattress and box spring.
After all, a state actor is neither expected to carry a
crystal ball nor "to determine the manner in which the law's
grey areas will be clarified and defined." Borucki v. Ryan,
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827 F.2d 836, 838 (1st Cir. 1987).
Finally, we believe it is important to note that nothing
approaching a full scale search occurred in this case.2
Stephen Crooker acknowledged that the officers' sweep of the
premises, including the basement, took only five to ten
minutes, and that the officers spent only "a couple of
minutes" in the bedroom. Apart from the search between the
mattress and box spring, nothing in the record suggests that
the officers were rummaging aimlessly about. This is
persuasive proof that safety, not a search for evidence, was
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2. We think it is useful to contrast what transpired here
with the search conducted in Chimel v. California, 395 U.S.
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752 (1969). That foray lasted between 45 minutes and an
hour, id. at 754, and comprised "a full-blown search of the
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entire house for evidence of the crime for which the arrest
was made." Maryland v. Buie, 494 U.S. at 336.
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the impetus for, and guiding force behind, the protective
sweep at issue here. The Court has taught that a protective
"sweep lasts no longer than is necessary to dispel the
reasonable suspicion of danger and in any event no longer
than it takes to complete the arrest and depart the
premises." Buie, 494 U.S. at 335-36. The sweep conducted by
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the defendants in this case fulfilled these criteria.
We need go no further.3 Because the record, read as it
must be, in the light most flattering to the plaintiffs, see
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Quintero de Quintero, 974 F.2d at 227-28, shows conclusively
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that the defendants are entitled to qualified immunity, the
district court erred in denying their motion for summary
judgment.
Reversed.
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3. In view of the result that we reach, we need not address
defendants' asseveration, premised on cases such as Griffin
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v. Wisconsin, 483 U.S. 868 (1987) and United States v.
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Cardona, 903 F.2d 60 (1st Cir. 1990), cert. denied, 498 U.S.
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1049 (1991), that their status as parole officers, coupled
with Stephen Crooker's status as a parolee, created a
diminished expectation of privacy and broadened the officers'
entitlement to conduct a warrantless search.
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