                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-23-1997

Kornegay v. Cottingham
Precedential or Non-Precedential:

Docket 96-7423




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Recommended Citation
"Kornegay v. Cottingham" (1997). 1997 Decisions. Paper 167.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/167


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iled July 23, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7423

LYNETTE KORNEGAY, on her behalf and as guardian ad
litem for her two minor children; ANDREA ALEXANDER;
REGINALD KORNEGAY,

Appellants

v.

DEWAYNE COTTINGHAM, Detective, and certain
unidentified officers of the Wilmington Police Force;
ALFRED KACZAROWSKI; JOHN CIRATELLA; SCOTT
SOWDEN; LIAM SULLIVAN; WILLIAM BROWNE; BRUCE
COFFIEY; M. J. BROWNE; SEAN FINERTY; RICHARD
IARDELLA; MARLYN DIETZ; OFFICER THOMAS SPELL;
JACK FORTNEY; MICHAEL RODRIQUEZ; RICHARD
BROWN; CITY OF WILMINGTON

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 95-cv-00161

Argued: February 14, 1997

Before: COWEN, MCKEE, and JONES,* Circuit Judges.

(Filed July 23, 1997)



_________________________________________________________________
*The Honorable Nathaniel R. Jones, Circuit Judge, United States Court
of Appeals for the Sixth Circuit, sitting by designation.
Charles Slanina, Esq.
 (Argued)
Biggs & Battaglia
1800 Mellon Bank Center
P.O. Box 1489
Wilmington, DE 19899

Attorney for Appellants

William J. Rhodunda Jr., Esq.
 (Argued)
City of Wilmington Law Department
City/County Building, 8th Floor
800 N. French Street
Wilmington, DE 19801

Attorney for Appellees

OPINION OF THE COURT

MCKEE, Circuit Judge.

Lynette Kornegay filed this action under 42 U.S.C. § 1983
alleging that various Delaware law enforcement officers
conducted an illegal search of her home in violation of the
Fourth and Fourteenth Amendments. The district court
granted defendants' motion for summary judgment based
upon their assertion of qualified immunity. For the reasons
that follow, we will reverse in part and remand for further
proceedings consistent with this opinion.1
_________________________________________________________________

1. Kornegay raises four claims in this appeal: (1) the search warrant was
facially defective in failing to state any facts from which the informant's
reliability could be assessed; (2) detective Cottingham acted with reckless
disregard for the truth in failing to disclose that his confidential
informant was unreliable; (3) detective Cottingham acted unreasonably
in believing that Shannon Selby could be found at 2611 N. Locust Street;
and (4) the Crisis Management Tactical Team conducted an unlawful
entry by failing to comply with the knock-and-announce requirement.
We will affirm the decision of the district court on the first three claims
without discussion.

                               2
I.

Kornegay and her minor children moved into a house
located at 2611 N. Locust Street, Wilmington, Delaware in
April 1994. The previous tenant, Dorothy Selby, had moved
from that address in January 1994. Her nephew, Shannon
Selby ("Selby"), occasionally listed his aunt's address as his
own.

In April 1994, Selby became a suspect in the April 14,
1994 murder of Montel Morgan. Wilmington police detective
DeWayne Cottingham headed that investigation and, after a
preliminary investigation into Selby's whereabouts,
incorrectly concluded that Selby was living at 2611 N.
Locust Street. Acting upon that belief, Cottingham applied
for and obtained a search warrant for that address. The
warrant listed Selby and the murder weapon as the
subjects of the search even though Selby was not
considered the shooter. His alleged involvement in Morgan's
murder was telling the actual shooter to shoot Morgan.

On May 5, 1994 at 6:00 a.m., members of the Crisis
Management Tactical Team ("CMTT") executed the warrant
which had been labeled "high risk" because Selby was
wanted for Morgan's murder. The CMTT used a battering
ram to break down the front door of 2611 N. Locust Street.
Only after the door was broken in did the officers identify
themselves by yelling "Police. Search Warrant." They
entered each room with guns drawn yelling "Police. Search
Warrant." In an upstairs bedroom, police found Kornegay,
a male friend, Andre Alexander, and Kornegay's twenty-
month old daughter in bed. The police ordered them not to
move, and Alexander was dragged from the bed and
handcuffed for a few minutes. Other officers brought
Kornegay's seven-year old son from the adjacent room
where he had been sleeping to his mother's room. He was
harshly told to "get in to where they are."

At that point, an officer downstairs called out "all clear",
and the CMTT left the house. Kornegay and Alexander were
given clothes to change into from their pajamas and
brought downstairs. Once downstairs, Kornegay was given
a copy of the search warrant. Only then did she learn that
the police were searching for a murder suspect named

                               3
"Shannon Selby." In all, the CMTT remained in the house
approximately five minutes. During that time, the officers
restricted their search to behind furniture and the inside of
closets. Only the front door was damaged. Kornegay and
her children, however, were understandably frightened and
upset by the incident.

Kornegay subsequently filed a civil rights action under 42
U.S.C. § 1983 on behalf of herself and her children against
the officers who executed the search. She alleged that the
officers had violated the Fourth and Fourteenth
Amendments by relying on a warrant that was facially
defective and then searching their home in an
unreasonable manner. The officers moved for summary
judgment arguing that they were protected under the
doctrine of qualified immunity. The district court agreed
and granted summary judgment. This appeal followed.

We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291 which gives us jurisdiction over "appeals from all
final decisions of the district courts of the United States."
28 U.S.C. § 1291.2

II.

Kornegay contends that there are issues of material fact
regarding the reasonableness of the officers' conduct in
executing the search warrant and that the district court
therefore erred in granting them summary judgment. Our
standard of review is plenary.

Thus, `[we] review the district court's summary
judgment determination de novo, applying the same
standard as the district court. . . . [I]n all cases
summary judgment should be granted if, after drawing
_________________________________________________________________

2. In their brief, the appellants cite the collateral order doctrine as the
basis for our appellate jurisdiction. However, the authorities they cite for
that proposition all involve cases in which summary disposition was
denied the government actors. See, e.g., Forsyth v. Kleindienst, 729 F.2d
267, 271 (3d Cir. 1984); Evans v. Dillahunty, 711 F.2d 828, 829-30 (8th
Cir. 1983). Here, the district court granted summary disposition to the
officers. Thus, the appellants are appealing afinal order of that court,
and, therefore, our jurisdiction derives from 28 U.S.C. § 1291.

                               4
all reasonable inferences from the underlying facts in
the light most favorable to the non-moving party, the
court concludes that there is no genuine issue of
material fact to be resolved at trial and the moving
party is entitled to judgment as a matter of law.

Spain v. Gallegos, 26 F.3d 439, 446 (3d Cir. 1994)(quoting
Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co.,
998 F.2d 1224, 1230 (3d Cir. 1993)).

III.

"Government officials performing discretionary functions
generally are shielded from liability for civil damages if their
conduct does not violate clearly established . . .
constitutional rights of which a reasonable person would
have known." Shea v. Smith, 966 F.2d 127, 130 (3d Cir.
1992).

"[I]t is inevitable that law enforcement officers will in
some cases reasonably but mistakenly conclude that [their
conduct was lawful]." Orsatti v. New Jersey State Police, 71
F.3d 480, 483 (3d Cir. 1995). Accordingly, we do not
inquire into whether these defendants violated the Fourth
and Fourteenth Amendments. Instead, we must determine
if a reasonable fact finder could conclude that their conduct
did not violate clearly established law of which a reasonable
person would have known. Qualified immunity turns on the
reasonableness of the officers' belief that their conduct was
legal not its legality per se. "To determine reasonableness,
a reviewing court must ask `whether a reasonable person
could have believed the defendant's actions to be lawful in
light of clearly established law and the information he
possessed.' " Parkhurst v. Trapp, 77 F.3d 707, 712 (3d Cir.
1996)(citation omitted); see also Shea, 966 F.2d at 130
("[A]n official who conducts an illegal search may not be
held personally liable if he could have reasonably believed
that the search comported with the Fourth Amendment.").
" `Clearly established rights' are those with contours
sufficiently clear that a reasonable official would
understand that what he is doing violates that right." Id.
Since the instant challenge focuses in large part upon the
officers' failure to knock and announce their presence, we

                               5
must determine the extent to which the "knock and
announce" rule was a "clearly established" right when they
searched Kornegay's home.

A. The "Knock and Announce" Rule

The Fourth Amendment protects "[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." Wilson v.
Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 1916 (1995). The
"commonlaw requirement that police officers entering a
dwelling must knock on the door and announce their
identity and purpose before attempting forcible entry" is
incorporated into the Fourth Amendment's guarantees.
Richards v. Wisconsin, ___ U.S. ___, 117 S. Ct. 1416, 1418
(1997).3 This rule has come to be known as the "knock-and-
announce" requirement and it "strikes the appropriate
balance between the legitimate law enforcement concerns at
issue in the execution of search warrants and the
individual privacy interests affected by no-knock entries."
Id. at 1421-22.

First, it reduces the likelihood of injury to police
officers, who might be mistaken, upon an
unannounced intrusion into a home, for someone with
no right to be there. Second, it seeks to prevent
needless damage to private property. Finally, it
embodies respect for the individual's right of privacy,
which is to be imposed upon as little as possible in
making an entry to search or arrest.

United States v. Nolan, 718 F.2d 589, 596 (3d
Cir.1983)(citations omitted).

In United States v. Gable, 401 F.2d 765 (3d Cir. 1968),
police obtained a warrant to search the defendant's house
for gambling equipment. They attempted to gain entry to
the house by inserting a crowbar into the door and prying
_________________________________________________________________

3. Richards was decided after the search at issue here and thus the
officers who searched Kornegay's home cannot be charged with
knowledge of it. However, we cite it because the case affirms the
necessity for a case-by-case inquiry into the reasonableness of the police
conduct under the law at the time of the search.

                               6
it open without first knocking or announcing their presence
or purpose. As they were forcing the door, the defendant
voluntarily opened it. We held that the entry was illegal
because police failed to announce their purpose before
using the crowbar to pry the door open. That case was
decided nearly thirty years before the search at issue here.

Even the highest court in the state where the instant
search was executed had years ago declared a search
unreasonable when police failed to comply with the knock-
and-announce requirement. See Tatman v. Delaware, 320
A.2d 750 (Del. 1974). In Tatman, police obtained a search
warrant which they executed at 6:00 a.m. They knocked on
the street door to the multi-family dwelling, waited a few
seconds, and then used sledge hammers to break the door
down. Police then went to the second-floor apartment
described in the warrant and broke into that apartment
without knocking or announcing their purpose. The court
declared "[t]he no-knock search here was unreasonable and
violative of Fourth Amendment requirements. Prior to the
entry of a residence, the police officer is required by the
common law, in executing a warrant, to signify the cause of
his coming, and to make a request to open the doors." Id.
at 750 (citations and internal quotation marks omitted).

As noted earlier, Richards v. Wisconsin reaffirmed the
common law rule. In Richards, the defendant was convicted
of possession of cocaine with intent to distribute based
upon evidence that was seized from his hotel room
following a "no-knock" entry pursuant to a search warrant.
The Wisconsin Supreme Court affirmed the trial court's
denial of the defendant's suppression motion reasoning
that, given the inherent danger of today's drug culture,
"police officers are never required to knock and announce
their presence when executing a search warrant in a felony
drug investigation." Richards, 117 S. Ct. at 1418. The U.S.
Supreme Court reversed holding that there could be no
categorical exception to the rule. "Instead, in each case, it
is the duty of a court confronted with the question to
determine whether the facts and circumstances of the
particular entry justified dispensing with the knock-and-
announce requirement." Id. at 1421.

                               7
A "no-knock" entry is justified when "the police [ ] have a
reasonable suspicion that knocking and announcing their
presence, under the particular circumstances, would be
dangerous or futile, or that it would inhibit the effective
investigation of the crime." Id.; see also Wilson, 115 S. Ct.
at 1918-19; United States v. Singleton, 439 F.2d 381, 385-
86 (3d Cir. 1971). Courts have upheld dispensing with the
knock-and-announce requirement in four situations: (1) the
individual inside was aware of the officers' identity and
thus announcement would have been a useless gesture; (2)
announcement might lead to the sought individual's
escape; (3) announcement might place the officers in
physical peril; and (4) announcement might lead to the
destruction of evidence. See Richards, 117 S. Ct. at 1421;
Wilson, 115 S. Ct. at 1919; Bodine v. Warwick, 72 F.3d
393, 397 (3d Cir. 1995); United States v. Stiver , 9 F.3d 298,
302 (3d Cir. 1993); United States v. Kane, 637 F.2d 974,
978 (3d Cir. 1981).

Here, the magistrate issued an ordinary warrant to
search the residence at 2611 N. Locust Street. Such a
warrant "authorize[s] an executing officer to enter the
property where the search or seizure was to occur but
would not confer `no knock' authority unless the warrant so
indicated." Bodine, 72 F.3d at 396. Therefore, the officers
are shielded by qualified immunity only if they "could
reasonably have decided that an urgent need existed for
such an entry into the premises." United States v. Stewart,
867 F.2d 581, 584 (10th Cir. 1989). "To determine
reasonableness, a reviewing court must ask itself `whether
a reasonable person could have believed the defendant's
actions to be lawful in light of clearly established law and
the information he possessed.' The objective facts control a
decision on summary judgment, regardless of allegations of
intent." Parkhurst v. Trapp, 77 F.3d 707, 712 (3d Cir.
1996)(citation omitted). With these principles as our
guidepost, we examine the actions of the officers here.

B. The Officers' Information

Detective Cottingham was assigned to investigate the
April 14, 1994 murder of Montel Morgan, who had been
shot in the stomach in a high-crime area of Wilmington

                               8
called "the Bucket." Cottingham learned from one witness
that Shannon Selby told another individual at the scene to
shoot Morgan. A second witness confirmed that someone
other than Selby had shot Morgan but stated only that
Selby was present. This witness did not implicate Selby in
the shooting at all. Based upon this information,
Cottingham obtained an arrest warrant for Selby charging
him with first-degree murder, first-degree conspiracy,
second-degree conspiracy, and tampering with a witness.4
All of the murder-related charges were based on Selby's
alleged encouragement of the shooter. It is undisputed that
Cottingham did not think that Selby had shot Morgan.

After obtaining the arrest warrant, detective Cottingham
applied for a warrant to locate Selby. Although Cottingham
initially found three different addresses for Selby among
various police and court documents, a preliminary
investigation suggested that Selby's correct address was
2611 N. Locust Street. Residents in the Bucket confirmed
that Selby lived in the vicinity, but they did not know
where. A review of police records disclosed three different
addresses for Selby, one of which, 2611 N. Locust Street,
was in that area. The most recent arrest report listing N.
Locust Street as Selby's address was from January 1993.
Further investigation disclosed that a new telephone
number had been issued to a "Dorothy Selby" at that
address. Cottingham made no further effort to determine if
that number was still assigned to that address, but he did
call the number and ask for "Shannon Selby." He was told
that Selby was not there.

On May 4, 1994, detective Cottingham obtained a
warrant to search 2611 N. Locust Street for Selby and the
murder weapon. Cottingham decided to execute the warrant
at 6:00 a.m. on the following day and requested that the
Crisis Management Tactical Team ("CMTT") assist with the
search. The warrant was labeled "high risk" because Selby
was wanted in connection with a serious felony, and the
weapon involved had not been recovered. The CMTT was
instructed to consider Selby armed and dangerous.
_________________________________________________________________

4. The second witness reported to police that several individuals
including Selby threatened her after the incident.

                               9
On May 5, 1994 at 6:00 a.m., the CMTT, wearing masks
and bullet-proof vests, broke down the door at 2611 N.
Locust Street. After the door was broken in, the officers
yelled "Police. Search Warrant." The officers thereafter
entered Kornegay's home and proceeded as set forth above
in Part I.

The district court agreed with the Magistrate Judge's
Report and Recommendation that these "circumstances
justified deviation from the knock and announce rule, as
the high risk warrant was for a first degree murder suspect
who was a known drug dealer with previous arrests for
felony offenses involving the use of a weapon, and the gun
used in the murder had not been recovered." App. at 46.
We disagree.

There is nothing in this record to suggest that the officers
had information that the murder weapon was in Selby's
possession. He did not fire the fatal shot, he was not even
reported to have been armed at the murder scene, and
nothing suggests that the police had information that the
shooter gave Selby the weapon after the shooting. The mere
fact that the shooting occurred and the murder weapon was
not recovered does not establish that Selby was in
possession of it with such certainty that the officers'
conduct can be ruled reasonable as a matter of law.
"[O]fficers must have more than a mere hunch or suspicion
before an exigency can excuse the necessity for knocking
and announcing their presence. . . . [W]e will closely
scrutinize officers making a forced entry without first
adequately announcing their presence and purpose."
Dickerson v. McClellan, 101 F.3d 1151, 1160 (6th Cir. 1996)
(citations and internal quotation marks omitted).

Moreover, allegations of Selby's past drug dealing and
prior arrests for violent crimes do not suspend the knock-
and-announce rule. See Richards, 117 S. Ct. at 1421. A
reasonable jury could conclude that the reasons offered in
support of this search merely "consisted of generalities that
bore no relation to the particular premises being searched
or the particular circumstances surrounding the search."
United States v. Stewart, 867 F.2d 581, 585 (10th Cir.
1989). That conclusion suggests either that the officers'
concern that Selby was armed and dangerous was

                               10
unreasonable or that the officers employed a generalized
procedure that was unreasonable as applied to Kornegay's
home.

"In order to justify a `no-knock' entry, the police must
have a reasonable suspicion that knocking and announcing
their presence, under the particular circumstances, would be
dangerous or futile, or that it would inhibit the effective
investigation of the crime by, for example, allowing the
destruction of evidence." Richards, 117 S. Ct. at 1421
(emphasis added). The ordinary risks that surround a
general category of criminal behavior are insufficient by
themselves to create an exigent circumstance. See id.
(refusing to create a blanket exception to the knock-and-
announce rule for felony-drug investigations because of the
danger they involve and the ease of destroying drug
evidence); see also United States v. Bates, 84 F.3d 790 (6th
Cir. 1996); Stewart, 867 F.2d at 584-85."If a per se
exception were allowed for each category of criminal
investigation that included a considerable--albeit
hypothetical--risk of danger to officers or destruction of
evidence, the knock[-]and-announce element of the Fourth
Amendment's reasonableness requirement would be
meaningless." Richards, 117 S. Ct. at 1421.

In United States v. Stewart, federal agents obtained a
warrant to search the defendant's house for drugs and
weapons based on evidence that he had supplied the drugs
involved in two previous undercover purchases and that
"substances traffickers do commonly possess and carry a
firearm." Stewart, 867 F.2d at 582. The search was
executed by the Denver S.W.A.T. team in accordance with
the pre-arranged plan to use "a two-man steel battering
ram to break down the front door and [then] immediately
[throw] a full charge stun grenade into the living room." Id.
at 583. Before breaking in the door, the S.W.A.T. team did
not knock and announce its presence. The subsequent
search uncovered drugs and other paraphernalia, cash, and
a loaded, semi-automatic pistol. Stewart entered a
conditional plea of guilty to distributing cocaine but
reserved the right to appeal the denial of his motion to
suppress. In the appeal that followed, the court of appeals
reversed. It reasoned, in part, that

                               11
[t]he officers had no information that would have led
them to believe that the defendant armed himself on a
regular basis. The officers thus had no information
whether firearms were present within the house. The
one incident involving the defendant and a pistol took
place away from the defendant's house. [Thus a]ny
conclusions regarding the presence of firearms on the
premises were purely conjectural.

Id. at 585. The same situation exists here with regard to
the officers' concern that Selby was armed, and it was
therefore for a jury to determine the reasonableness of this
entry as a matter of fact and not for a court to determine
as a matter of law.

Richards makes clear that the risks generally
surrounding murder investigations did not necessarily
create an exigent circumstance in this case. See Richards,
117 S. Ct. at 1421. We recognize that, as a practical
matter, officers effectuating an entry into a criminal
suspect's home might prefer to do so without first
announcing their presence. However, the Constitution
simply does not permit that practice in all instances.
Consequently, officers who act unreasonably cannot place
themselves beyond exposure to liability nor complain if they
are held accountable by persons such as Kornegay merely
because the more "prudent" entry is the unannounced one.
Often it is "reasonable" under a section 1983 analysis to
choose that method of entry. However, in view of the
weighty Fourth Amendment concerns at stake and the
sanctity of one's dwelling, it will not always be so. Indeed,
section 1983 liability for violations of the Fourth and
Fourteenth Amendments would be all but eviscerated if we
were to hold that an unannounced entry into one's home is
always "reasonable" because it provides a greater measure
of safety to police.5 Cf. id. ("[T]he fact that felony drug
investigations may frequently present circumstances
warranting a no-knock entry cannot remove from the
neutral scrutiny of a reviewing court the reasonableness of
_________________________________________________________________

5. Of course, we do not suggest that these officers ought to be liable
under section 1983. We only hold that a jury must assess the
reasonableness of their conduct.

                               12
the police decision not to knock and announce in a
particular case.").

Nothing in the record before us suggests that the officers
here had information that Selby regularly carried a weapon
or kept weapons in his home. The officers merely knew that
Selby was a "known drug dealer with previous arrests for
felonies including Robbery First Degree and Possession of a
Deadly Weapon During the Commission of a Felony." App.
at 47. A reasonable jury could conclude that this
information was not sufficiently particular to excuse the
officers' failure to knock and announce their presence
before breaking down the door to Kornegay's home. "An
individual's privacy interests are nowhere more clearly
defined or rigorously protected by the courts than in the
home the core of fourth amendment rights." Wanger v.
Bowner, 621 F.2d 675, 681 (5th Cir. 1980) (citing Payton v.
New York, 445 U.S. 573, 589 (1980)).

As noted above, the officers knew that Selby had not shot
the murder victim nor did they have evidence that he
possessed the gun that was used. Moreover, the officers
had conflicting evidence about whether Selby was even
involved in the murder of Morgan. Two witnesses placed
him at the scene of the murder, but only one said that he
had played any role in it.

Finally, a jury could find that any exigency surrounding
the circumstances of this case was eliminated by the
officers' decision to execute the search at 6:00 a.m. One of
the officers who executed the warrant explained that the
reason the CMTT selected that time was because "usually
the person is in bed . . . for [our] safety we do [them] at that
time, there [are] no people on the street . . . the school
children [are not] out or anything like that, and . . . to get
the people in bed." App. at 84 (emphasis added).

Thus, we cannot conclude on the facts of this case that
there is no issue of material fact as to whether the CMTT's
execution of the search violated clearly established
constitutional rights of which a reasonable person would
have been aware.

                               13
IV.

For the reasons set forth above, we reverse the district
court's grant of summary judgment on Kornegay's claim
that the CMTT's execution of the search violated the Fourth
and Fourteenth Amendments but affirm the grant of
summary judgment on her other claims. We remand to the
district court for further proceedings consistent with this
opinion.
A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

                               14
