                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-6781


NATHAN WEBB,

                Plaintiff - Appellant,

           v.

LYNNE BRAWN; JAMES F. SMITH; MARK VANHOUTEN,

                Defendants - Appellees.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:12-ct-03042-BO)


Argued:   March 19, 2014                  Decided:   April 28, 2014


Before MOTZ, KING, and THACKER, Circuit Judges.


Reversed by unpublished per curiam opinion.


ARGUED: John Gunter, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. David Stebbins Coats,
BAILEY & DIXON, LLP, Raleigh, North Carolina, for Appellees. ON
BRIEF: Stephen L. Braga, Kevin Cope, Benjamin Wood, Third Year
Law Student, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, for Appellant.    J.T.
Crook, BAILEY & DIXON, LLP, Raleigh, North Carolina, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Nathan   Webb    brings     this    §   1983   action    against    police

officers who searched his home without a warrant and in the face

of his repeated refusals to permit the search.                   The district

court granted the officers’ motion to dismiss.                For the reasons

that follow, we reverse.



                                         I.

      In   September    2009,    Webb     moved   into    a   house    with   his

girlfriend, Heather Upchurch, who co-signed the lease on the

home. 1    On April 18, 2010, their daughter, S.W., was born.                 Six

weeks later, on May 31, S.W. was taken to the hospital.                       The

next day, she was diagnosed with multiple fractures to her ribs

and legs, and child protective services removed her from her

parents’ custody.        Following an argument with Webb, Upchurch

decided to move out of the house and relinquished her house keys

to   Webb.      She    then     took     up   residence   with   her     family,

approximately 30 miles away.           A day or two later, Upchurch sent




      1
       The background facts are undisputed.      Given that the
district court dismissed the complaint pursuant to Rule 12(b)(6)
for failure to state a claim on which could be granted, we
accept as true any disputed facts as alleged by Webb in his
complaint. See Minor v. Bostwick Labs, Inc., 669 F.3d 428, 430
n.1 (4th Cir. 2012).   All quotations are from the complaint or
the public records attached to it.


                                         2
a friend to Webb’s house to retrieve her dog and most of her

belongings.

        Officer Lynne Brawn of the Town of Cary Police Department

investigated    Webb    and      Upchurch        for      their     role       in   S.W.’s

injuries.      During   a    June   4    interview,        Upchurch      told       Officer

Brawn   that   Webb   had    a   gun    in     his    house   and      that    he    was   a

convicted   felon.      Upchurch        also    told      Officer      Brawn    that   she

wanted to collect her remaining belongings from Webb’s house.

Later that day, Officer Brawn asked Webb if it would be all

right if Upchurch went to collect the rest of her belongings

from the home, and Webb said that that would be fine.                               Officer

Brawn then informed Webb that Upchurch would be accompanied by

uniformed officers.         Webb protested, but Officer Brawn responded

that Webb had no choice in the matter because this was the

department’s “procedure.”              Webb became angry and told Officer

Brawn that he “didn’t want police cars all over his property”

and “didn’t want his home to become a public spectacle in view

of his neighbors.”

     Nevertheless,      on    the      evening       of   June    4,    Officers       Mark

VanHouten and James Smith drove Upchurch from her family’s home

to Webb’s house to collect her belongings.                        The officers spoke

with Officer Brawn, who informed them that there was a loaded

weapon in the residence and that Webb was angry about the police

going into the house.         When Upchurch and the officers arrived at

                                          3
the    house,    the    doors     were    locked      and   Webb    was    not   home.

Upchurch telephoned Webb and placed him on speaker phone.                        Webb

stated that he did not want police on his property and refused

to come home.          Webb “received multiple phone calls from . . .

[the] officers asking him to come and open the doors” to the

house so      that   Upchurch     could    retrieve     her   belongings.        Webb

continued to refuse, stating that “he did not want them on his

property.”

       Officers Smith and VanHouten then “allowed Ms. Upchurch to

force entry into the residence by breaking in through a rear

door.”     The officers asked where Webb’s gun was located and

Upchurch told them it was in the bedroom closet.                     After Officer

VanHouten “search[ed] the residence” and retrieved the weapon,

Officer Smith called Officer Brawn to tell her that the weapon

had been secured.

       Officer Brawn then called Webb and “taunting him, sa[id]

that his cooperation was no longer needed, and that they had

gotten in[to]” the house by themselves.                 Webb was angry and said

that he would file charges against the officers for unlawfully

searching his home without a warrant.                   When Officer Brawn told

Webb   that     Upchurch    was    legally     able    to   enter    the   residence

because her name was on the lease, Webb responded that Upchurch

had chosen to move out, which was why she no longer had the keys

to the house.          Officer Brawn “laughed” and said that it didn’t

                                           4
matter     now   because      the    officers   had    found    the   gun   and    were

obtaining a warrant for Webb’s arrest.                  Officer Brawn then went

to   Webb’s      house   to    speak    with    the   other    officers     and    take

possession of the weapon.

      On June 5, Webb returned to his home to find it ransacked.

He   was   distraught      and      attempted   to    commit   suicide      by   taking

sleeping pills.          Upon his release from the hospital, he was

arrested and charged as a felon in possession of a firearm.

After a jury trial, he was acquitted of this charge.                             He was

later convicted in state court of felony child abuse and is

currently serving his sentence for that crime.

      On February 27, 2012, Webb, proceeding pro se from prison,

filed a verified complaint against Officers Brawn, VanHouten,

and Smith pursuant to 42 U.S.C. § 1983.                        A year later, the

district court granted the defendants’ motion to dismiss for

failure to state a claim on which relief could be granted.                         Webb

subsequently filed a motion to alter or amend the judgment under

Rule 59(e), which included a new exhibit with additional facts

intended to show that the defendants knew that Upchurch did not

live at his home on the date of the search.                    Before the district




                                           5
court ruled on this motion, however, Webb noted an appeal.                          The

district court subsequently denied the Rule 59(e) motion. 2



                                           II.

      At the outset, we must note what is, and what is not, at

issue     before     us.     In     his    pro-se    complaint,     Webb     made   the

detailed factual allegations set forth above, and alleged that

the officers violated his Fourth, Fifth, Eighth, and Fourteenth

Amendment rights.           He also asserted various state common law

tort claims.

      The officers moved to dismiss the complaint in its entirety

and submitted a lengthy memorandum in support of that motion.

In response to Webb’s “common law tort claims,” the officers

asserted qualified immunity.               Importantly, the officers did not

assert      qualified      immunity        with     respect    to      the    federal

constitutional claims.

      The    district      court    dismissed       the   entire    complaint.        In

doing so, the court did not address qualified immunity.                       Rather,

the   court    relied      on   a   state       appellate   court     opinion    in    a

criminal      case    involving      the    same     parties   (but    focusing       on


      2
       In his 59(e) motion, Webb included additional facts that
were not in his complaint, e.g., Upchurch did not contribute to
rent or utilities payments and her identification card did not
list the house as her residence.      We need not and do not
consider these facts.


                                            6
different facts) to conclude that Upchurch was Webb’s cotenant

at the time of the search and that her consent to the search was

voluntarily    given.      The    court       further    ruled     that   Webb’s

contemporaneous    objection      to    the    search     via     telephone    was

ineffective because Webb was not physically present at the house

at the time of the search.         Finding the Fourth Amendment claim

to be the “core” claim in Webb’s complaint, the district court

dismissed all of Webb’s other claims as frivolous.

     On appeal, Webb asserts only that the district court erred

in dismissing his Fourth Amendment claim.                The officers contend

to the contrary, but in doing so, they do not rely on qualified

immunity.     With this understanding of the issue before us, we

turn to the only question presented on appeal:                  did the district

court err in dismissing Webb’s Fourth Amendment claim?



                                       III.

     We   review   an   order    granting     a   Rule   12(b)(6)     motion   to

dismiss de novo, accepting as true the facts alleged in the

complaint and drawing all reasonable inferences in favor of the

plaintiff.     Ridpath v. Bd. of Governors, Marshall Univ., 447

F.3d 292, 306 (4th Cir. 2006).           We consider the complaint in its

entirety, including documents incorporated into the complaint by

reference.    We can take judicial notice of matters in the public

record.     Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180

                                        7
(4th Cir. 2009).         We may also consider documents attached to the

motion to dismiss, so long as the documents “are integral to the

complaint and authentic.”           Id.

      The    Fourth     Amendment    generally       prohibits       law    enforcement

officers from entering a person’s home without a warrant.                             See

U.S. Const. amend. IV; Payton v. New York, 445 U.S. 573, 585

(1980).          But   “[t]his    prohibition        does    not     apply    . . .    to

situations in which voluntary consent has been obtained, either

from the individual whose property is searched or from a third

party      who    possesses      common     authority        over    the     premises.”

Illinois     v.    Rodriguez,     497     U.S.    177,      181    (1990)    (citations

omitted).        “‘Common authority’ . . . is not merely a question of

property interest.         Rather, it requires evidence of ‘mutual use’

by   one    having     ‘joint    access    or    control     for    most    purposes.’”

United States v. Buckner, 473 F.3d 551, 554 (4th Cir. 2007)

(quoting     United      States    v.     Matlock,    415     U.S.    164,     171    n.7

(1974)).

      Courts assess the validity of this consent based on the

“totality of the circumstances.”                  Trulock v. Freeh, 275 F.3d

391, 401 (4th Cir. 2001). 3             Relevant factors include whether the


      3
       Even if a third party lacks the actual authority to
consent to a search, police officers do not violate the
Constitution as long as the third party “had [the] apparent
authority to consent.” Buckner, 473 F.3d at 555. The apparent
authority rule, however, applies only to officers’ mistakes of
(Continued)
                                            8
individual providing consent resided at the home, whether access

to the property to be searched was secured, and whether the

third party possessed the means to access the property.                 Cf.

Buckner, 473 F.3d at 554.      The fact that an individual is listed

as an occupant of the property is not necessarily dispositive.

Compare United States v. Brown, 328 F.3d 352, 356 (7th Cir.

2003) (holding that being named on the lease did not by itself

establish authority to consent), with United States v. Backus,

349 F.3d 1298, 1299-1300, 1304 (11th Cir. 2003) (holding that

spouse who jointly owned but no longer occupied marital property

had authority to consent).

     Given these governing principles, Webb’s complaint clearly

alleges   facts   sufficient   to    support   a   plausible   claim   that

Upchurch did not possess authority to consent to the search.

His complaint alleges that:         (1) he and Upchurch had broken up

and Upchurch no longer resided at the house, (2) Upchurch did

not possess a key to the house, (3) the doors to the house were

locked when Upchurch arrived with the law enforcement officers,



fact, not mistakes of law. See Moore v. Andreno, 505 F.3d 203,
209 (2d Cir. 2007). The apparent authority rule would not seem
to apply here given that at this juncture, it is undisputed that
the officers knew the relevant facts surrounding Upchurch’s
consent to the search, i.e., that Upchurch had moved out of the
house and that she no longer possessed the keys to the
residence.    As such, any mistake the officers made about
Upchurch’s authority to consent would have been a mistake of
law.


                                     9
and (4) Upchurch and the officers gained access only by breaking

into the house.

       Contrary to the officers’ assertions, the public records

properly attached to the complaint, including Officer Brawn’s

police report, do not contradict Webb’s allegations.                          Rather,

Officer Brawn’s report corroborates Webb’s account.                     For Officer

Brawn    states    in     her   police   report     that   at    the   time   of    the

search, Upchurch was no longer residing at the house, no longer

possessed a key to the residence, and that Webb objected to the

officers       entering    his    property.         Moreover,     Officer     Brawn’s

report further states that when Upchurch arrived with the police

“the    door    was    locked    and   Mr.   Webb    was   not   home,”     but    that

Upchurch nevertheless “was able to get into the house to get her

things.”       In view of these facts, a reasonable jury could infer

that Upchurch, and the officers accompanying her, broke into

Webb’s home.          Accordingly, Webb has alleged a plausible Fourth

Amendment claim.          Whether Webb can prove it, particularly in the

face of any defenses the officers may raise, is a different

story.



                                         IV.

       For the reasons above, the judgment of the district court

is reversed to the extent it dismisses Webb’s Fourth Amendment



                                         10
claim   for   failure   to   state   a   claim   on   which   relief    may   be

granted.



                                                                       REVERSED




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