         10-1336-cv
         Montanez v. Sharoh

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

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


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 9th day of November, two thousand eleven.
 5
 6       PRESENT: JOHN M. WALKER, JR.,
 7                ROBERT A. KATZMANN,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       JOSEPH M. MONTANEZ,
14
15                             Plaintiff-Appellee,
16
17                      -v.-                                                10-1336-cv
18
19       DANIEL SHAROH, Police Officer,
20       MICHAEL MCCORMACK, Police Officer,
21
22                             Defendants-Appellants,
23
24       CITY OF MILFORD, KEITH L. MELLO,
25       Police Chief, MACHARELLI, Police Officer,
26       KIELY, Police Officer,
27
28                                     Defendants.
29
30
31       FOR DEFENDANTS-APPELLANTS:                   JAMES N. TALLBERG (Kerry L.
32                                                    Keeney Curtin, on the brief),
33                                                    Karsten, Dorman & Tallberg, LLC,
34                                                    Hartford, CT.
 1   FOR PLAINTIFF-APPELLEE:       DAVID F. ABERNETHY, Drinker
 2                                 Biddle & Reath LLP,
 3                                 Philadelphia, PA.
 4
 5   FOR AMICUS CURIAE AMERICAN
 6   CIVIL LIBERTIES UNION OF
 7   CONNECTICUT:                  SANDRA J. STAUB (David J.
 8                                 McGuire, on the brief), American
 9                                 Civil Liberties Union of
10                                 Connecticut, Hartford, CT.
11
12        Appeal from the United States District Court for the
13   District of Connecticut (Arterton, J.).
14
15          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

16   AND DECREED that the Memorandum and Order of the district

17   court be REVERSED and REMANDED to the district court to

18   enter judgment to the Appellants dismissing the complaint.

19          Defendants-Appellants, Officer Daniel Sharoh and

20   Officer Michael McCormack of the Milford, Connecticut Police

21   Department, appeal from an Order of the United States

22   District Court for the District of Connecticut (Arterton,

23   J.).    The district court, inter alia, denied Appellants’

24   motion for summary judgment asserting a qualified immunity

25   defense and granted summary judgment sua sponte in favor of

26   Plaintiff-Appellee Joseph Montanez on the issue of

27   liability.

28          Montanez brings this lawsuit pursuant to 42 U.S.C.

29   § 1983 arising from Appellants’ warrantless entry and search

30   of his home during an attempted “child welfare check” by the

                                    2
1    Connecticut Department of Children and Families (“DCF”).       We

2    assume the parties’ familiarity with the underlying facts,

3    the procedural history, and the issues presented for review.

4        We have jurisdiction to review the district court’s

5    denial of qualified immunity to the extent that the appeal

6    “is based on either the undisputed facts or the version of

7    the facts presented by [Montanez].”     Cowan ex rel. Estate of

8    Cooper v. Breen, 352 F.3d 756, 761 (2d Cir. 2003).     We

9    review de novo a district court’s decision to deny summary

10   judgment on the basis of qualified immunity.     Faghri v.

11   Univ. of Conn., 621 F.3d 92, 96 (2d Cir. 2010).    “Summary

12   judgment is proper only when, construing the evidence in the

13   light most favorable to the non-movant, ‘there is no genuine

14   dispute as to any material fact and the movant is entitled

15   to judgment as a matter of law.’”     Doninger v. Niehoff, 642

16   F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P.

17   56(a)).

18       A qualified immunity determination involves a two-part

19   inquiry. See Amore v. Novarro, 624 F.3d 522, 530 (2d Cir.

20   2010).    First, we ask whether “the facts, viewed in the

21   light most favorable to the plaintiff, show that the

22   officer’s conduct violated a constitutional right.”     Walczyk

23   v. Rio, 496 F.3d 139, 154 (2d Cir. 2007).    Second, we must

                                    3
1    decide “whether the right at issue was ‘clearly established’

2    at the time of defendant’s alleged misconduct.”       Pearson v.

3    Callahan, 555 U.S. 223, 232 (2009).       “If the conduct did not

4    violate a clearly established constitutional right, or if it

5    was objectively reasonable for the officer to believe that

6    his conduct did not violate such a right, then the officer

7    is protected by qualified immunity.”       Gilles v. Repicky, 511

8    F.3d 239, 244 (2d Cir. 2007).       We may exercise our

9    discretion in deciding which inquiry should be addressed

10   first.    Pearson, 555 U.S. at 236.

11          Appellants’ warrantless entry did not violate

12   Montanez’s Fourth Amendment rights.       The Fourth Amendment

13   protects “[t]he right of the people to be secure in their

14   persons, houses, papers, and effects, against unreasonable

15   searches and seizures.”    U.S. Const. amend. IV.     The

16   “physical entry of the home is the chief evil against which

17   the wording of the Fourth Amendment is directed.”         Payton v.

18   New York, 445 U.S. 573, 585 (1980) (internal quotation marks

19   omitted).    Thus, “[i]t is a ‘basic principle of Fourth

20   Amendment law’ that searches and seizures inside a home

21   without a warrant are presumptively unreasonable.”          Id. at

22   586.

23          “Nevertheless, because the ultimate touchstone of the

                                     4
1    Fourth Amendment is ‘reasonableness,’ the warrant

2    requirement is subject to certain exceptions.”   Brigham City

3    v. Stuart, 547 U.S. 398, 403 (2006).   One such exception is

4    that “[p]olice officers may enter a dwelling without a

5    warrant to render emergency aid and assistance to a person

6    whom they reasonably believe to be in distress and in need

7    of that assistance.”   Tierney v. Davidson, 133 F.3d 189, 196

8    (2d Cir. 1998) (internal quotation marks and alteration

9    omitted).   “Courts must apply an objective standard to

10   determine the reasonableness of the officer’s belief,” id.,

11   taking into account “the circumstances then confronting the

12   officer, including the need for a prompt assessment of

13   sometimes ambiguous information concerning potentially

14   serious consequences,” id. at 197 (quoting 3 Wayne LaFave,

15   Search and Seizure § 6.6(a), at 391 (3d ed. 1996)).

16   Moreover, this Court uses six guides to aid in determining

17   whether exigent circumstances exist to justify a warrantless

18   entry:

19       (1) the gravity or violent nature of the offense
20       with which the suspect is to be charged; (2) whether
21       the suspect is reasonably believed to be armed; (3)
22       a clear showing of probable cause . . . to believe
23       that the suspect committed the crime; (4) strong
24       reason to believe that the suspect is in the
25       premises being entered; (5) a likelihood that the
26       suspect will escape if not swiftly apprehended; and
27       (6) the peaceful circumstances of the entry.

                                   5
1    United States v. Fields, 113 F.3d 313, 323 (2d Cir. 1997)

2    (quoting United States v. MacDonald, 916 F.2d 766, 769-70

3    (2d Cir. 1990) (en banc)).

4        The objective circumstances at the time of Appellants’

5    entry could cause a reasonable officer to believe that there

6    were exigent circumstances requiring prompt entry.     Although

7    the factors above do not squarely apply to the case at hand,

8    they are “intended not as an exhaustive canon, but as an

9    illustrative sampling of the kinds of facts to be taken into

10   account.”   MacDonald, 916 F.2d at 770.

11       Prior to entering the house, Appellants were informed

12   that Montanez was armed and dangerous and a convicted felon

13   wanted for weapons and narcotics violations.     They were also

14   warned to use “extreme caution” if they located Montanez.

15       The district court dismissed the possibility that guns

16   or drugs remained a risk to Montanez’s children because the

17   police had already seized an Uzi firearm and drugs from the

18   home less than 24 hours earlier.   This was error.    In

19   addition to the Uzi 9mm firearm, the police had seized an

20   empty holster and boxes of .22 and .38 caliber ammunition,

21   but the police did not find a weapon that could fit the

22   holster or that could fire the ammunition.     Indeed, the

23   officers were explicitly warned by an All-Points Bulletin

                                   6
1    that Montanez was believed to be armed and dangerous.

2        Moreover, Officer Sharoh knew there was a documented

3    history of DCF involvement with Montanez’s seven-year-old

4    step-daughter, which included substantiated complaints.1

5    Officer Sharoh also knew that based on the earlier search,

6    which resulted in the seizure of guns and drugs that were

7    easily accessible to children, DCF wanted to remove the

8    child due to concerns about her health, welfare, and safety.

9        Montanez argues that the record shows that Appellants

10   had no reason to believe that there was any person inside

11   the home.   We disagree.   At the time of entry, Montanez

12   remained a fugitive despite his promise to the police that

13   he would return to his home.    Moreover, the fact that the

14   lights were on at 1:00 a.m., that a side door was unlocked,

15   and that no one responded to knocks at the door or a phone

16   call does not rule out the reasonable possibility that

17   someone was inside the home.    Although the seven-year-old


         1
           Montanez argues that the substantiated complaints
     were not connected to either Montanez or the girl’s mother,
     but rather other relatives who did not reside in the house.
     That is irrelevant because we look to the circumstances
     confronting the officers at the time they entered the home
     in determining whether their entry was justified by exigent
     circumstances. At the time of entry, Officer Sharoh knew
     “that there had been a history of DCF involvement with the
     occupants of that residence, including Mr. Montanez.” App.
     at 163.
                                    7
1    was reported to be at her grandmother’s house when the

2    police executed the search warrant, there is no evidence

3    that Appellants had any reason to believe that the girl

4    would still be at her grandmother’s house when they entered

5    the home approximately eight hours later.     It was

6    objectively reasonable for Appellants to believe that

7    Montanez may have been at the residence and that he posed a

8    threat to not only the child, but also to the DCF worker

9    attempting to conduct a welfare check.

10       Finally, the officers entered through an unlocked door,

11   did not cause any property damage or seize anything, and

12   left after five to seven minutes once they confirmed that no

13   one was present.     The undisputed facts here clearly indicate

14   that Appellants’ entry was justified by exigent

15   circumstances.     Because Appellants did not violate

16   Montanez’s Fourth Amendment rights, the second part of the

17   qualified immunity inquiry is unnecessary.     Appellants are

18   entitled to qualified immunity.

19       Because we have concluded that exigent circumstances

20   justified Appellants’ entry, it follows that the district

21   court erred in granting summary judgment sua sponte in favor

22   of Montanez on the issue of liability for his warrantless

23   entry claim.     For the foregoing reasons, we REVERSE the

                                     8
1    Memorandum and Order of the district court to the extent

2    that it denied Appellants’ motion for summary judgment and

3    granted summary judgment in favor of Montanez on the issue

4    of liability and REMAND to the district court to enter

5    judgment in favor of Appellants dismissing Montanez’s

6    complaint.

 7
 8                              FOR THE COURT:
 9                              Catherine O’Hagan Wolfe, Clerk
10
11




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