     06-3623-cv
     Moore v. Andreno

 1                        UNITED STATES COURT OF APPEALS
 2                            FOR THE SECOND CIRCUIT
 3
 4                            August Term 2006
 5    (Argued: February 7, 2007            Decided: October 22, 2007)
 6                Docket Nos. 06-3623-cv(L), 06-3748(XAP)
 7   -----------------------------------------------------x
 8   RICHARD B. MOORE,
 9
10               Plaintiff-Appellee-Cross-Appellant,
11
12                           -- v. --
13
14   JOSEPH A. ANDRENO, DELAWARE COUNTY DEPUTY SHERIFF AND
15   KURT R. PALMER, DELAWARE COUNTY DEPUTY SHERIFF,
16
17               Defendants-Cross-Claimants-Appellants-
18               Cross-Appellees,
19
20   COUNTY OF DELAWARE AND THOMAS MILLS, DELAWARE COUNTY
21   SHERIFF,
22
23               Defendants-Cross-Claimants,
24
25   RUTH M. SINES,
26
27               Defendant-Cross-Defendant.
28
29   -----------------------------------------------------x
30
31   B e f o r e :      WALKER and SACK, Circuit Judges, and DANIELS,
32                      District Judge.*

33         Appeal by Defendants Andreno and Palmer from a judgment of

34   the United States District Court for the Northern District of New

35   York (Thomas J. McAvoy, Judge) denying their motion for summary

36   judgment.    Because the law governing third-party consent searches


     *
1         The Honorable George B. Daniels, of the United States
2    District Court for the Southern District of New York, sitting by
3    designation.

                                        -1-
1    is unsettled, and because defendants made a reasonable mistake in

2    applying that law to the situation with which they were

3    confronted, we hold that defendants are entitled to qualified

4    immunity and the district court erred in denying them summary

5    judgment.

6         REVERSED and REMANDED.

 7                                        FRANK W. MILLER, East
 8                                        Syracuse, N.Y., for
 9                                        Defendants-Cross-Claimants-
10                                        Appellants-Cross-Appellees.
11
12                                        TERRENCE P. O’LEARY, Walton,
13                                        N.Y., for Plaintiff-Appellee-
14                                        Cross-Appellant.

15   JOHN M. WALKER, JR., Circuit Judge:

16        Courts have long acknowledged that a person has the right to

17   establish a private sanctum in a shared home, a place to which he

18   alone may admit or refuse to admit visitors.   Yet, with the

19   recurrence of domestic violence in our society, we are loath to

20   assume that a man may readily threaten his girlfriend, take her

21   belongings, lock her out of part of his house, and then invoke

22   the Fourth Amendment to shield his actions.    Deputies Joseph A.

23   Andreno and Kurt R. Palmer, responding to an emergency call, were

24   faced with reconciling these two competing interests.   While they

25   misapplied the relevant constitutional calculus, they are police

26   officers, not lawyers or mathematicians.   And thus, because the

27   law governing the authority of a third party to consent to the

28   search of an area under the predominant control of another is

                                    -2-
1    unsettled, and because Deputies Andreno and Palmer made a

2    reasonable mistake in applying that law to the situation with

3    which they were confronted, the district court erred in denying

4    them summary judgment on qualified immunity grounds.

5                                  BACKGROUND

6         Richard B. Moore and Ruth M. Sines were on-again, off-again

7    lovers.1    They lived together in Moore’s home for a period of

8    time in 1996-1997 and again in 2001-2002.     Sines had a key to

9    Moore’s home; her furniture was there and she paid some of the

10   bills.     However, Sines was subject to certain restrictions: her

11   children lived with their fathers and Moore’s study was “off

12   limits” to her, and it was undisputed that Moore, as she put it,

13   “always kept it locked.”

14        On or about April 9, 2002, while traveling to New York from

15   Tennessee, Moore and Sines had an argument, and Moore threatened

16   to kill Sines.     Shortly after their return two days later to

17   Moore’s home in Delaware County, New York, Sines decided to move

18   out and had begun to pack her belongings when she discovered that

19   her helmet and snorkeling equipment were missing.     Sines “went

20   upstairs to see what had been going on upstairs in the last two

21   days,” suspecting that Moore had moved her effects.     Upstairs,



     1
1         Like the district court, we rely on the facts set forth in
2    defendants’ statement of material facts in light of the
3    plaintiff’s failure to respond timely to the defendants’ summary
4    judgment motion.

                                       -3-
1    she noticed two new locks on the door to Moore’s study.     Thinking

2    that her missing equipment might be in Moore’s study, Sines cut

3    the locks with a bolt cutter.

4         Sometime thereafter, Sines received a telephone call from an

5    unidentified caller.   Fearing that it might be Moore and that he

6    could be en route to his home and bent on violence, Sines called

7    the Delaware County Sheriff’s Department.   The Sheriff’s

8    Department dispatched Deputies Andreno and Palmer to the scene.

9         Upon their arrival, a “hysterical” Sines requested the

10   Deputies’ assistance in retrieving her belongings from Moore’s

11   study.2   She explained that she feared that Moore might return at

12   any moment.   She also informed the Deputies that she “wasn’t

13   allowed in th[e] [study] unless [Moore] was there” and that she

14   had cut the locks off the door.    She may also have informed them

15   that the Deputies were likely to find marijuana in the study.

16        In the company of the Deputies, Sines entered the study and

17   searched it, including by opening a desk drawer and rummaging in

18   a closet.   In both places, Sines discovered drugs and drug

19   paraphernalia.3   The Deputies then seized the drugs.


     2
1         It is not clear from the record whether Sines entered
2    Moore’s study prior to the arrival of the Deputies in order to
3    verify whether or not her helmet and snorkeling equipment were,
4    in fact, in that room -- and if not, why not. She presumably had
5    an opportunity to do so, as she cut the bolts prior to calling
6    the Sheriff’s Department.
     3
1         Sines found a medical bag or briefcase in the closet. Only
2    after opening it -- perhaps thinking her snorkeling equipment

                                       -4-
1         On May 8, 2003, a state grand jury indicted Moore on two

2    counts of criminal possession of a controlled substance in the

3    fourth degree and one count of criminal possession of a

4    controlled substance in the fifth degree.   On February 9, 2004,

5    the county court, after suppressing the evidence taken from the

6    scene, dismissed the indictment.

7         Moore then filed suit in the United States District Court

8    for the Northern District of New York against, principally,4

9    Deputies Andreno and Palmer, asserting claims under 42 U.S.C. §§

10   1981, 1983, 1985, and state law.   The gravamen of his complaint

11   is that the Deputies’ entry into his study and seizure of his

12   drugs violated the Fourth Amendment to the United States

13   Constitution.   Moore does not dispute the legality of the

14   Deputies’ entry into his home; he contests only the narrower, and

15   more nettlesome, question of their entry into and search of his

16   study.   Cf. United States v. Karo, 468 U.S. 705, 726 (1984)

17   (O’Connor, J., concurring).

18        Defendants Andreno and Palmer moved for summary judgment,

19   arguing in the alternative that their search of the study was not

20   unconstitutional or, if it was, that they were nevertheless



1    might be in the medical bag -- did she discover the drugs.
     4
1         Moore also named as defendants the County of Delaware, its
2    Sheriff Thomas Mills, and Ruth Sines. The district court
3    dismissed his claims against those defendants, and he has not
4    appealed.

                                     -5-
1    entitled to qualified immunity.

2          The district court (Thomas J. McAvoy, Judge) first

3    considered whether Moore had properly alleged a constitutional

4    violation.   The district court inquired whether Sines had actual

5    or apparent authority to consent to a search of the study, or

6    whether other exigent circumstances justified the search.     The

7    district court noted that “[a] third party may validly grant the

8    requisite consent if she has joint access or control of the

9    property for most purposes,” Moore v. Andreno, No. 3:05-cv-0175,

10   2006 WL 2008712, at *3 (N.D.N.Y. July 17, 2006), and acknowledged

11   that generally when “co-occupants are residing together not as

12   mere roommates, but as part of an intimate relationship, social

13   expectations are that the co-occupants of the home enjoy full

14   access to the entire home,” id. at *6.   The district court

15   nevertheless concluded that “a fair-minded trier of fact could

16   reasonably conclude that [Moore] maintained exclusive control

17   over the study and that Sines did not have actual, apparent, or

18   implied authority to consent to entry into that room.”     Id. at

19   *7.   The district court likewise held that exigent circumstances

20   could not justify the Deputies’ entry into the study.    Although

21   Sines had complained to the Sheriff’s Department of possible

22   domestic violence, her allegations, the district court explained,

23   were stale: they “pertained to conduct that occurred several days

24   earlier. . . . There was nothing urgent or imminent.”      Id. at


                                       -6-
1    *10.    The district court therefore held that Moore had

2    “established a colorable claim of a constitutional violation.”

3     Id. at *7.

4           The district court next considered whether the Deputies were

5    entitled to qualified immunity, and denied it.     The district

6    court held that “[i]t was clearly established at all times

7    relevant hereto that third-party consent is valid” only under

8    certain, well-defined circumstances.      Id. at *8.   Without

9    extended discussion, the district court also held that no

10   reasonable officer could have believed that exigent circumstances

11   justified the search.    Id. at *11.   The Deputies appealed.

12                                DISCUSSION

13          The Deputies argue that the district court misapplied the

14   law governing third-party consent searches and searches

15   predicated upon exigent circumstances.     First, the Deputies

16   contend that the “lower court erred when it concluded that the

17   Deputies could not reasonably have believed that Sines had the

18   authority to enter into [Moore’s] study.”     Appellants’ Br. at 20.

19   Second, they liken their behavior to that of the officers in

20   United States v. Miller, 430 F.3d 93 (2d Cir. 2005), who believed

21   that the area they searched harbored an individual posing a

22   danger to others on the scene; on the basis of this comparison,

23   they urge us to reverse the district court’s conclusion that

24   exigent circumstances did not justify the search of Moore’s


                                      -7-
1    study.

2         The Deputies also argue that the district court improperly

3    denied them qualified immunity.    Whether or not the search of

4    Moore’s study was unconstitutional, they say, it was not so

5    egregious a constitutional violation that reasonable minds could

6    not differ as to its putative legality, especially in light of

7    the confusion in the law surrounding the scope of co-occupants’

8    authority to consent to searches of shared premises.

9         As a general rule, the denial of summary judgment is not

10   immediately appealable.   See 28 U.S.C. § 1291.   “Under the

11   collateral order doctrine, however, [we will review] the denial

12   of a qualified-immunity-based motion for summary judgment . . .

13   to the extent that the district court has denied the motion as a

14   matter of law.”   O’Bert ex rel. Estate of O’Bert v. Vargo, 331

15   F.3d 29, 38 (2d Cir. 2003).   Unlike in most such appeals,

16   however, the plaintiff here has not filed a statement of material

17   facts, and so, like the district court, we are unable to accept

18   his facts for purposes of deciding whether the Deputies may

19   properly invoke qualified immunity.     Cf. Salim v. Proulx, 93 F.3d

20   86, 91 (2d Cir. 1996) (permitting immediate appeal when

21   defendants accepted plaintiff’s version of the facts).

22        Nevertheless, our appellate jurisdiction over this case is

23   not in doubt.   The district court’s holding that the law

24   governing third-party consent searches was clearly established is


                                       -8-
1    a conclusion of law and is thus immediately appealable.   See

2    Proulx, 93 F.3d at 89 (noting that the collateral order rule is

3    “easy to apply” when a defendant challenges a denial of qualified

4    immunity on the argument “that the district court erred in ruling

5    that the law the defendant is alleged to have violated was

6    clearly established”).   Moreover, while we think it a closer

7    question, the district court’s conclusion that “it cannot be said

8    that the Deputies acted reasonably under the circumstances” is

9    also immediately appealable.   Moore, 2006 WL 2008712, at *9.    The

10   district court’s determination on that score did not require

11   resolution of disputed facts; rather, the district court came to

12   its decision on the basis of the uncontroverted, albeit one-

13   sided, record before it.   In light of the plaintiff’s counsel’s

14   failure to oppose the defendants’ motion, the only version of

15   facts that the court had before it -- and therefore the

16   undisputed version of the facts -- was that proffered by the

17   defendants.

18        And so, we now turn to the inquiry into the merits of a

19   qualified immunity defense:

20        The first step in a qualified immunity inquiry is to
21        determine whether the alleged facts demonstrate that a
22        defendant violated a constitutional right. If the
23        allegations show that a defendant violated a constitutional
24        right, the next step is to determine whether that right was
25        clearly established at the time of the challenged action --
26        that is, “whether it would be clear to a reasonable officer
27        that his conduct was unlawful in the situation he
28        confronted.” A defendant will be entitled to qualified
29        immunity if either (1) his actions did not violate clearly

                                     -9-
1         established law or (2) it was objectively reasonable for him
2         to believe that his actions did not violate clearly
3         established law.
4
5    Iqbal v. Hasty, 490 F.3d 143, 152 (2d Cir. 2007) (citations

6    omitted) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).5

7    We address these steps in order, beginning with the question of

8    whether the Deputies’ conduct, as alleged, violated a

9    constitutional right.   We review the district court’s conclusions

10   de novo.    Savino v. City of New York, 331 F.3d 63, 71 (2d Cir.

11   2003).

12   I. The Constitutional Violation

13        A. Third-Party Consent

14        The Fourth Amendment forbids “unreasonable” searches and

15   seizures.   This constitutional bulwark against government

16   intrusion into the lives of private citizens is made up of an

17   interlacing web of standards and rules.   For instance, “[w]e must

18   balance the nature and quality of the intrusion on the

19   individual’s . . . interests against the importance of the

20   governmental interests alleged to justify the intrusion,” United

21   States v. Place, 462 U.S. 696, 703 (1983), under the “totality of



     5
1         Despite continued criticism of this “rigid order of battle,”
2    see Scott v. Harris, 127 S. Ct. 1769, 1774 n.4 (2007) (internal
3    quotation marks omitted), unless and until the Supreme Court
4    heeds the plea to overrule Saucier, we will continue to ask first
5    whether a constitutional violation has occurred and only then ask
6    whether defendants are nevertheless entitled to qualified
7    immunity. Cf. Pierre N. Leval, Judging Under the Constitution:
8    Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1275 (2006).

                                     -10-
1    the circumstances,” United States v. Knights, 534 U.S. 112, 118

2    (2001) (internal quotation marks omitted).    Yet the Supreme Court

3    has also admonished that a warrantless search is “per se

4    unreasonable . . . subject only to a few specifically established

5    and well-delineated exceptions.”    Schneckloth v. Bustamonte, 412

6    U.S. 218, 219 (1973) (omission in original) (internal quotation

7    marks omitted).

8         In United States v. Matlock, the Supreme Court explicated

9    one such “well-delineated” exception: that pertaining to

10   “search[es] of property, without warrant and without probable

11   cause, but with proper consent voluntarily given.”    415 U.S. 164,

12   165-66 (1974).    Such consent may be given by a third party.   As

13   the Court has explained,

14        the authority which justifies the third-party consent . . .
15        [rests on] mutual use of the property by persons generally
16        having joint access or control for most purposes, so that it
17        is reasonable to recognize that any of the co-inhabitants
18        has the right to permit the inspection in his own right . .
19        . .
20
21   Id. at 171 n.7.

22        We have refined the Matlock rule, holding that a third party

23   has authority to consent to a search of a home when that person

24   (1) has access to the area searched and (2) has either (a) common

25   authority over the area, (b) a substantial interest in the area,

26   or (c) permission to gain access to the area.    United States v.

27   Davis, 967 F.2d 84, 87 (2d Cir. 1992); see also United States v.



                                     -11-
1    Gradowski, 502 F.2d 563, 564 (2d Cir. 1974) (per curiam).6

2         Despite the stringency of these rules concerning third-party

3    consent searches, we also ask whether a police officer’s

4    objectively reasonable belief that he has obtained consent, even

5    if in fact he has not, renders a search constitutional.    See

6    Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (holding a search

7    constitutional when “the facts available to the officer[s] . . .

8    [would] warrant a man of reasonable caution in the belief that

9    the consenting party had authority over the premises” (internal

10   quotation marks omitted)); see also Florida v. Jimeno, 500 U.S.

11   248, 249 (1991).   That is, even if a third party lacks actual

12   authority to consent to a search of a particular area, he still

13   may have apparent authority to consent to the search.     See, e.g.,

14   United States v. Buckner, 473 F.3d 551, 555 (4th Cir. 2007).

15   However, “the Rodriguez apparent authority rule applies [only] to



     6
 1        Another refinement of Matlock is found in United States v.
 2   Groves. See 470 F.3d 311, 319 (7th Cir. 2006) (noting that
 3   factors indicative of third party’s authority include “(1)
 4   possession of a key to the premises; (2) a person’s admission
 5   that she lives at the residence in question; (3) possession of a
 6   driver’s license listing the residence as the driver’s legal
 7   address; (4) receiving mail and bills at that residence; (5)
 8   keeping clothing at the residence; (6) having one’s children
 9   reside at that address; (7) keeping personal belongings such as a
10   diary or a pet at that residence; (8) performing household chores
11   at that residence; (9) being on the lease for the premises and/or
12   paying rent; and (10) being allowed into the residence when the
13   owner is not present” (citations omitted)); see also 4 Wayne R.
14   LaFave, Search and Seizure: A Treatise on the Fourth Amendment §
15   8.3(a), at 148 n.22 (4th ed. 2004) (“The Matlock formulation is
16   not a model of clarity.”).

                                    -12-
1    mistakes of fact [and] not mistakes of law.”   4 Wayne R. LaFave,

2    Search and Seizure: A Treatise on the Fourth Amendment § 8.3(g),

3    at 175 (4th ed. 2004); see, e.g., United States v. Brown, 961

4    F.2d 1039, 1041 (2d Cir. 1992) (per curiam) (“Rodriguez would not

5    validate, however, a search premised upon an erroneous view of

6    the law.   For example, an investigator’s erroneous belief that

7    landladies are generally authorized to consent to a search of a

8    tenant’s premises could not provide the authorization necessary

9    for a warrantless search.” (citation omitted)); see also Koch v.

10   Town of Brattleboro, 287 F.3d 162, 167 & nn.3-4 (2d Cir. 2002).

11        Such, then, was the state of the law when Deputies Andreno

12   and Palmer accompanied Sines into Moore’s study, permitted her to

13   forage in his desk and closet for her belongings, and discovered

14   the drugs.   Four years later, however, the Supreme Court decided

15   Georgia v. Randolph, 547 U.S. 103 (2006).   In Randolph, the Court

16   held that a search conducted on the basis of one co-tenant’s

17   consent is unreasonable as to a physically present and objecting

18   co-tenant.   Id. at 120.   In doing so, however, Randolph

19   emphasized that the reasonableness of a consent search is

20   informed by “widely shared social expectations.” Id. at 111.      For

21   example, “[a] person on the scene who identifies himself, say, as

22   a landlord or a hotel manager calls up no customary understanding

23   of authority to admit guests without the consent of the current

24   occupant.”   Id. at 112; see also id. at 111 (“When someone comes


                                     -13-
1    to the door of a domestic dwelling with a baby at her hip, . . .

2    she shows that she belongs there, and that fact standing alone is

3    enough to tell a law enforcement officer or any other visitor

4    that if she occupies the place along with others, she probably

5    lives there subject to the assumption tenants usually make about

6    their common authority when they share quarters.”).    The Court

7    thus subtly elided the existing distinction between a third

8    party’s actual authority to consent (i.e., Matlock) and his

9    apparent authority to consent (i.e., Rodriguez).   Cf. id. at 112

10   (noting an instance “in which even a person clearly belonging on

11   premises as an occupant may lack any perceived authority to

12   consent” (emphasis added)).

13        While the ramifications of Randolph for the Davis rule are

14   not clear, we need not strive to discern them.   Under either

15   Davis or Randolph, we see no basis to disturb the district

16   court’s conclusion that Sines lacked sufficient actual authority

17   to consent to the Deputies’ search of Moore’s study.    First,

18   under Davis, the law in effect at the time of the search, Sines

19   lacked actual authority to consent to the search of Moore’s study

20   because, though she had obtained physical access to the room by

21   the time the Deputies arrived, she did not have control over the

22   premises.   Davis reads Matlock to require that one who asserts

23   that a third party has authority to consent to a search of an

24   area satisfy a conjunctive test: the third party must have both


                                    -14-
1    access to and some measure of control (or right to exert control)

2    over the area.   See Davis, 967 F.2d at 86-87; cf. United States

3    v. Whitfield, 939 F.2d 1071, 1074-75 (D.C. Cir. 1991)

4    (interpreting Matlock as asking whether a third party has access

5    to and makes “mutual use” of an area).   But see United States v.

6    Rith, 164 F.3d 1323, 1329 (10th Cir. 1999) (“[T]he . . . test is

7    disjunctive: a third party has authority to consent to a search

8    of property if that third party has either (1) mutual use of the

9    property by virtue of joint access, or (2) control for most

10   purposes over it.”).

11        As a preliminary matter, “we note that no case in this

12   circuit has delimited the requisite ‘access’ necessary to satisfy

13   the first prong of the Davis test.”   Ehrlich v. Town of

14   Glastonbury, 348 F.3d 48, 53 (2d Cir. 2003).   In the instant

15   case, it is arguable whether Sines possessed the requisite access

16   to Moore’s study.   On the one hand, by the time the Deputies

17   arrived, she had already cut the locks on the study door and

18   therefore had physical access to the room.   On the other hand,

19   Sines’s access was acquired by force, and we stated in Ehrlich

20   that “we have never adopted as the clear law of this circuit

21   [the] view that access must mean physical access and not legal

22   access.”   Id. at 60; see also id. at 54 (noting our lack of

23   “clear precedential guidance . . . on . . . whether some amount

24   of physical force is permissible under the access prong of


                                    -15-
1    Davis”).    Thus, while she had physical access to the study, Sines

2    may have lacked “legal access.”    In other cases, we have found

3    the access requirement to be satisfied when the party who

4    consented to the search had a key to the searched area, see

5    United States v. Buettner-Janusch, 646 F.2d 759, 765 (2d Cir.

6    1981), or was the owner of the searched container and could “get

7    into [it] whenever he wanted” despite not having the key, see

8    Davis, 967 F.2d at 87 n.3.    These were not the circumstances

9    under which Sines acted.

10        Regardless of whether Sines’s forced access to the study was

11   enough to satisfy the first prong of Davis, she lacked authority

12   to consent to the search because she failed to satisfy the second

13   prong: Sines did not have any real measure of control over the

14   study.     First, she had no common authority over the area as she

15   and Moore were not married and did not share ownership of the

16   house.   See Davis, 967 F.2d at 87 (“Cleare’s ownership and actual

17   possession of the trunk in his bedroom, coupled with his ready

18   access to it, indicate that, at the very least, he retained

19   common authority over it.”); see also United States v. Backus,

20   349 F.3d 1298, 1304 (11th Cir. 2003) (holding that an estranged

21   wife who was a domestic violence victim and co-owner of a home

22   could consent to a search even though her husband had changed the

23   locks); United States v. Duran, 957 F.2d 499, 505 (7th Cir. 1992)

24   (“[A] spouse presumptively has authority to consent to a search


                                      -16-
1    of all areas . . . .”); United States v. Brannan, 898 F.2d 107,

2    108 (9th Cir. 1990) (affirming a wife’s actual authority to

3    consent to a search of her home, despite the fact that her

4    husband had changed the locks, when she had left the home due to

5    fear of her husband); United States v. Long, 524 F.2d 660, 661

6    (9th Cir. 1975) (same).

7         Second, Sines did not have a substantial interest in the

8    study, as required by Davis.   Her only interest in that room came

9    from her personal belief that some of her belongings were being

10   kept there.   Sines’s intuition, standing alone, did not give her

11   a “substantial” interest in the study.   While no case in this

12   circuit has yet defined what constitutes a “substantial interest”

13   for purposes of the Davis test, the Supreme Court has stated that

14        [c]ommon authority is . . . not to be implied from the mere
15        property interest a third party has in the property. The
16        authority which justifies the third-party consent does not
17        rest upon the law of property, with its attendant historical
18        and legal refinements, but rests rather on mutual use of the
19        property by persons generally having joint access or control
20        for most purposes, so that it is reasonable to recognize
21        that any of the co-inhabitants has the right to permit the
22        inspection in his own right and that the others have assumed
23        the risk that one of their number might permit the common
24        area to be searched.

25   Matlock, 415 U.S. at 171 n.7 (citations omitted).   It would be

26   inconsistent with these principles to define “substantial

27   interest” in terms of a property interest alone, particularly in

28   a case in which the third party lacked common authority and joint

29   access, and in which the property interest itself was purely


                                    -17-
1    speculative.7

2         In Davis, the court determined that Cleare, the consenting

3    party, had a substantial interest in the searched container based

4    on the fact that “it was his trunk and he kept personal items of

5    some importance in it.”   967 F.2d at 87.   But in addition to

6    Cleare’s property interest in the trunk and in the items

7    contained therein -- and consistent with the spirit of Matlock --

8    the elements of mutual use, joint access, control, and assumption

9    of risk were also present:

10        [Cleare] testified that he owned the footlocker, that he
11        could open it at any time he wished “if [he] had to,” and
12        that he kept various personal items in it, including
13        photographs of present and former girlfriends. Cleare also
14        testified that Content never asked him not to look inside
15        the containers that Content had placed in the footlocker,
16        and that “nothing could have stopped” him from inspecting
17        them. He added that Content never forbade him to show the
18        footlocker or its contents to others.
19
20   Id. at 86 (alteration in original) (footnote omitted).    While we

21   do not mean to say that all of these factors must be present for

22   the substantial interest requirement to be met, the fact that

23   none of them was present in this case strongly indicates that

24   Sines did not have a substantial interest in Moore’s study.

25        Finally, Sines did not have permission to gain access to the

26   searched area, as Moore expressly forbade her to enter the study.

27   See Davis, 967 F.2d at 86 (finding valid consent when the


     7
1         There is no evidence that Sines’s personal property was
2    actually being kept in the study; she was unable to find the
3    missing items during her search.

                                    -18-
1    consenting party was never asked not to look inside the searched

2    containers and never forbidden to show them to others); cf.

3    United States v. Zapata-Tamallo, 833 F.2d 25, 27 (2d Cir. 1987)

4    (per curiam) (concluding that a host may consent to a search of

5    his guest’s bag when the guest failed to show that the bag was

6    “‘obviously’ his”); Buettner-Janusch, 646 F.2d at 765 (“[T]o

7    perform his laboratory duties, Macris was authorized to enter any

8    part of the laboratory and to open any jars of chemicals found

9    there.”); United States v. Perez, 948 F. Supp. 1191, 1200-01

10   (S.D.N.Y. 1996) (noting that the defendant never “prohibited his

11   father from examining the contents of the storage bins kept in

12   the closet and the armoire of [his] bedroom”).    Having failed to

13   satisfy both parts of the Davis test, Sines was without authority

14   to consent to a search of the study, and the Deputies therefore

15   cannot rely on consent to argue that the search was reasonable.

16        Under Randolph, the constitutional calculus of determining

17   whether the search was unreasonable might be somewhat different.

18   See 547 U.S. at 111 (“[T]he reasonableness of a search is in

19   significant part a function of commonly held understanding about

20   the authority that co-inhabitants may exercise in ways that

21   affect each other’s interests.”).    But we see no common

22   understanding of social practices, as Randolph uses that concept,

23   that could have led the officers to believe that Sines, who

24   admitted to the officers that she had broken the locks on Moore’s


                                   -19-
1    study and lacked permission to enter it, had authority to consent

2    to a search of the room.   Cf. id. at 112 (“Matlock relied on what

3    was usual and placed no burden on the police to eliminate the

4    possibility of atypical arrangements, in the absence of reason to

5    doubt that the regular scheme was in place.” (emphasis added)).

6         A study is commonly thought to be a private place.   See

7    Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U.

8    Chi. L. Rev. 47, 62 (1974) (“[W]ithout special information one

9    [might] suppose that husband and wife have independent authority

10   to admit persons to the living room and the kitchen, and probably

11   to the bathroom and bedroom; neither would have authority to

12   admit persons to the other’s study . . . .”).   Moore, moreover,

13   locked the door to his study, see United States v. Andrus, 483

14   F.3d 711, 718 (10th Cir. 2007) (“The inquiry into whether the

15   owner . . . has indicated a subjective expectation of privacy

16   traditionally focuses on whether the subject . . . is physically

17   locked.”); United States v. Kinney, 953 F.2d 863, 866 (4th Cir.

18   1992); United States v. Block, 590 F.2d 535, 537 (4th Cir. 1978),8

19   and refused Sines permission to enter, see Rith, 164 F.3d at 1331

20   (noting that “an agreement or understanding between the defendant

21   and the third party that the latter must have permission to enter


     8
1         The presence of a lock is not dispositive in all cases. It
2    is not certain that, had Moore locked his study only after his
3    altercation with Sines, he could have terminated any preexisting
4    authority on her part to consent to its search. See, e.g.,
5    Brannan, 898 F.2d at 108; Long, 524 F.2d at 661.

                                    -20-
1    the defendant’s room” would vitiate consent).

2         As Chief Justice Roberts has explained, at a bare minimum,

3    “a person [who] wants to ensure that his possessions will be

4    subject to a consent search only due to his own consent, . . .

5    [may] place these items in an area over which others do not share

6    access and control, [like] . . . a private room.”    Randolph, 547

7    U.S. at 135 (Roberts, C.J., dissenting) (third emphasis added);

8    United States v. Morning, 64 F.3d 531, 536 (9th Cir. 1995) (“A

9    defendant cannot expect sole exclusionary authority unless he . .

10   . has a special and private space within the joint residence.”),

11   abrogated by Randolph, 547 U.S. at 108 n.1; Zapata-Tamallo, 833

12   F.2d at 27; United States v. Robinson, 479 F.2d 300, 302 (7th

13   Cir. 1973) (upholding consent when “the defendant [did not] claim

14   exclusive dominion and control over a specific room or portion of

15   a room or particular area of the apartment”).   That is precisely

16   what Moore did, and his ability to do so is unaffected by his

17   decision otherwise to share his home with another.

18        With these social expectations operating in the background,

19   and with the specific knowledge that Sines was not permitted to

20   enter the study and had used force to gain access, the Deputies

21   could not validate their warrantless search of Moore’s study on

22   the basis of consent.

23        B. Exigent Circumstances

24        The Deputies also argue that their entry into the study was


                                     -21-
1    justified because they worried that Moore might arrive and wish

2    to (or already be on the premises prepared to) do violence to

3    Sines.   We need not tarry long on this argument.   The exigency of

4    a situation may insulate a warrantless search from constitutional

5    attack if “law enforcement agents were confronted with an ‘urgent

6    need’ to render aid or take action.”   United States v. McDonald,

7    916 F.2d 766, 769 (2d Cir. 1990) (en banc) (quoting Dorman v.

8    United States, 435 F.2d 385, 391 (D.C. Cir. 1970) (en banc)).

9    See generally Brigham City v. Stuart, 126 S. Ct. 1943, 1947

10   (2006) (“One exigency obviating the requirement of a warrant is

11   the need to assist persons who are seriously injured or

12   threatened with such injury.”).   We have explained that the

13   “urgency” of the officers’ need depends on six factors:

14        (1) the gravity or violent nature of the offense with
15        which the suspect is to be charged; (2) whether the
16        suspect “is reasonably believed to be armed”; (3) “a
17        clear showing of probable cause . . . to believe that
18        the suspect committed the crime”; (4) “strong reason to
19        believe that the suspect is in the premises being
20        entered”; (5) “a likelihood that the suspect will
21        escape if not swiftly apprehended”; and (6) the
22        peaceful circumstances of the entry.
23
24   McDonald, 916 F.2d at 769-70 (omission in original).

25        Considering the situation confronted by Deputies Andreno and

26   Palmer in light of these factors (adapted to the circumstances of

27   this case), we do not think that the Deputies had an “urgent

28   need” to enter the study and thus that “exigent circumstances”

29   could justify the search.   The Deputies entered Moore’s home


                                    -22-
1    peacefully and Sines told them that Moore was not there.    Cf.

2    Tierney v. Davidson, 133 F.3d 189, 197 (2d Cir. 1998) (“It was

3    reasonable for Davidson to believe that someone inside had been

4    injured or was in danger, that both antagonists remained in the

5    house, and that this situation satisfied the exigent

6    circumstances exception.” (emphasis added)).   The Deputies stayed

7    with Sines for “quite a while” and at no time did they instruct

8    Sines to hurry, nor did they look elsewhere in the home for

9    Moore.

10        Moreover, if the Deputies had suspected that Moore might be

11   in the house, they would only have been justified in conducting a

12   protective sweep of those spaces “where [he] m[ight] [have]

13   be[en] found.”   Maryland v. Buie, 494 U.S. 325, 335 (1990).

14   There is no suggestion that anyone thought Moore might have

15   concealed himself in the erstwhile locked study.

16        C. Conclusion

17        For the foregoing reasons, we think that the Deputies’

18   search of Moore’s study was unreasonable and violated the Fourth

19   Amendment.   Sines lacked the authority to consent to the

20   Deputies’ search -- both because she did not have the requisite

21   access to and control over the study and because the particulars

22   of her relationship with Moore were not such that society would

23   expect her to have common authority over the study.    Moreover,

24   the Deputies had no urgent need to enter the study, as Moore was


                                    -23-
1    not yet on the premises, and there was no indication that his

2    arrival was imminent.

3    II. Lack of a Clearly Established Right

4         We turn next to the Deputies’ argument that, even if they

5    violated Moore’s constitutional rights, they are entitled to

6    qualified immunity because the law regarding third-party consent

7    to access in a shared dwelling was not clearly established at the

8    time of the search.    If, as here, “a constitutional right would

9    have been violated on the facts alleged,” Saucier, 533 U.S. at

10   200, the next inquiry is “whether the right was clearly

11   established,” id.     The Supreme Court has clarified that “[t]he

12   relevant, dispositive inquiry in determining whether a right is

13   clearly established is whether it would be clear to a reasonable

14   officer that his conduct was unlawful in the situation he

15   confronted.”   Id. at 202; see also Demoret v. Zegarelli, 451 F.3d

16   140, 148-49 (2d Cir. 2006).    Normally, it is only the “plainly

17   incompetent or those who knowingly violate the law” -- those who

18   are not worthy of the mantle of office -- who are precluded from

19   claiming the protection of qualified immunity.     Malley v. Briggs,

20   475 U.S. 335, 341 (1986).

21        The district court concluded that the law governing consent

22   searches “was clearly established at all times relevant hereto.”

23   Moore, 2006 WL 2008712, at *8.    It further held that “reasonable

24   officers could only conclude that [neither consent nor] exigent


                                      -24-
1    circumstances” justified the Deputies’ search of Moore’s study.

2    Id. at *11.   We disagree.

3         For constitutional suits like this one to deter misconduct,

4    without also deterring citizens from taking jobs in the public

5    sector, police officers must be able to understand the legal

6    constraints on their conduct.     See Back v. Hastings on Hudson

7    Union Free Sch. Dist., 365 F.3d 107, 129 (2d Cir. 2004) (“The

8    compromise between remedy and immunity that we have chosen turns

9    critically upon notice.”).     See generally Hope v. Peltzer, 536

10   U.S. 730, 739-40 (2002).     Thus, it is not enough to say that it

11   was clearly established that a warrantless search of an area is

12   unconstitutional absent probable cause or the voluntary consent

13   of a person with authority to consent to such a search.    “To be

14   clearly established, a right must have been recognized in a

15   particularized rather than a general sense.”     Sira v. Morton, 380

16   F.3d 57, 81 (2d Cir. 2004).    Indeed, “[t]he question is not what

17   a lawyer would learn or intuit from researching case law, but

18   what a reasonable person in the defendant’s position should know

19   about the constitutionality of the conduct.”     McCullough v.

20   Wyandanch Union Free Sch. Dist., 187 F.3d 272, 278 (2d Cir.

21   1999).

22        The law applying and interpreting Davis was not clearly

23   established at the time of the search.    As we noted earlier, this

24   court has never adequately defined the meaning of “access” under


                                      -25-
1    Davis.   See Ehrlich, 348 F.3d at 53.    Nor have we ever passed on

2    how “substantial” an interest must be to vest a third party with

3    authority to consent to a search over an area in which she has

4    such an interest.   And, indeed, it is not even clear what metric

5    we would use to measure substantiality, for it surely cannot

6    depend on the presence or absence of a property right in an area,

7    see Randolph, 547 U.S. at 110-11.     Finally, the difference

8    between “access” and “permission to gain access” is also obscure.

9    For instance, the dictionary definition of “access” given by the

10   district court includes “permission to approach.”     See Webster’s

11   Third International Dictionary 11 (1981) (defining access to

12   include “permission, liberty, or ability to enter”).

13        Thus, it was not clear at the time of the search whether the

14   physical access Sines gained by forcibly cutting off the locks to

15   the study satisfied the access requirement of Davis.     The fact

16   that Davis distinguishes between access and permission to gain

17   access -- part 2(c) of the test -- could suggest that even though

18   Sines’s access was improperly obtained, it nevertheless

19   constituted access within the meaning of the first prong.

20   However, because we have never decided whether physical force is

21   permissible under the access prong, Ehrlich, 348 F.3d at 54, a

22   reasonable officer could not be sure that Sines did not have the

23   requisite access to the study, see also id. at 60 (“Since the

24   issue before us is the existence of qualified immunity, we need


                                    -26-
1    not delimit the specific boundaries of the access requirement.”).

2    Moreover, based on the ambiguity in the law, an officer could

3    have reasonably believed that Sines’s suspicion that Moore had

4    hidden her personal effects in his study was sufficient to

5    constitute a substantial interest that could validate her

6    consent.    And “[i]f the officer’s mistake as to what the law

7    requires is reasonable, . . . the officer is entitled to the

8    immunity defense.”    Saucier, 533 U.S. at 205.

9         In concluding that, for purposes of qualified immunity, the

10   Deputies could have reasonably believed that Sines had authority

11   to consent to the search, we note that this analysis is distinct

12   from that in Part I.A., in which we concluded that, for purposes

13   of determining whether there had been a constitutional violation,

14   common understanding could not have supported a belief that Sines

15   had authority to consent.    The latter concerns the question of

16   whether the search itself was unreasonable, in violation of the

17   Fourth Amendment (i.e., the first part of the qualified immunity

18   test), based on common social understanding as clarified in

19   Randolph; the former concerns the question of whether the

20   officers’ belief in the lawfulness of their conduct was

21   unreasonable, thereby precluding a qualified immunity defense

22   (i.e., the second part of the qualified immunity test), based on

23   the state of the existing law, which of course pre-dated

24   Randolph.   In Anderson v. Creighton, a warrantless search case,


                                     -27-
1    the Supreme Court highlighted the distinction between these two

2    analyses and noted that it was possible for officers to have

3    conducted an unreasonable search based on a reasonable mistaken

4    belief.   483 U.S. 635, 643-44 (1987) (suggesting that it is

5    possible “to say that one ‘reasonably’ acted unreasonably”); see

6    also Saucier, 533 U.S. at 202 (“In Anderson, . . . we rejected

7    the argument that there is no distinction between the

8    reasonableness standard for warrantless searches and the

9    qualified immunity inquiry.”).

10        Thus, in this case, we conclude that the Deputies acted

11   unreasonably when they searched the study because “no . . .

12   authority [to consent] could sensibly be suspected.”     Randolph,

13   547 U.S. at 112.   However, we also conclude that because the law

14   was unclear, the Deputies could reasonably have believed that

15   Sines had access and a substantial interest and therefore had

16   authority to consent to the search.     Cf. Saucier, 533 U.S. at 203

17   (“We acknowledged that there was some ‘surface appeal’ to the

18   argument that, because the Fourth Amendment’s guarantee was a

19   right to be free from ‘unreasonable’ searches and seizures, it

20   would be inconsistent to conclude that an officer who acted

21   unreasonably under the constitutional standard nevertheless was

22   entitled to immunity because he ‘reasonably’ acted unreasonably.

23   This superficial similarity, however, could not overcome . . .

24   our history of applying qualified immunity analysis to Fourth


                                      -28-
1    Amendment claims against officers.” (internal quotation marks and

2    citation omitted)).

3         Because we believe that, at the time of the search, the law

4    was not clearly established as to whether Sines had authority to

5    consent to a search of the study, Deputies Andreno and Palmer are

6    entitled to qualified immunity.   We therefore do not need to

7    decide whether the law governing searches purportedly justified

8    by the exigency of the circumstances was clearly established at

9    the time the Deputies searched Moore’s study.

10                                CONCLUSION

11        For the foregoing reasons, the judgment of the district

12   court is REVERSED.    The case is REMANDED to the district court so

13   that it may enter summary judgment in defendants’ favor.

14




                                     -29-
