12-4743-cv
Payne v. Galie

                           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.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 10th day of September, two thousand fourteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         ROBERT D. SACK,
         GERARD E. LYNCH,
                     Circuit Judges.
________________________________________________

CHANIKKA DAVIS PAYNE,

                          Plaintiff-Appellant,

                           v.                                   No. 12-4743-cv

JOHN GALIE, THOMAS FOURMIER, THEODORE
WEED, JOHN FASO, JOSEPH GIANQUINTO,
NIAGARA FALLS POLICE DEPARTMENT, COUNTY
CRIME TASK FORCE,

                          Defendants-Appellees,

DOROTHY JONES,

                          Defendant.

________________________________________________
For Plaintiff-Appellant:           HANNAH Y.S. CHANOINE (Christos G. Papapetrou, Michael E.
                                   Rayfield, Martha A. Leibell, on the brief), Mayer Brown LLP,
                                   New York, NY.

For Defendants-Appellees:          THOMAS MICHAEL O’DONNELL, City of Niagara Falls Law
                                   Department, Niagara Falls, NY.



Appeal from the United States District Court for the Western District of New York (Telesca, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is VACATED and the case

REMANDED for further proceedings in accordance with this order.

       Acting pro se, Plaintiff-Appellant Chanikka Davis Payne brought suit in the United

States District Court for the Western District of New York (Telesca, J.), claiming inter alia that

defendants-appellees violated her Fourth Amendment rights by entering another person’s

apartment without a warrant in order to arrest her. The district court entered judgment on the

pleadings on October 25, 2012, dismissing Payne’s complaint with prejudice. Payne now appeals

from that judgment, arguing that the district court erred in dismissing her Fourth Amendment

claim. We assume the parties’ familiarity with the underlying facts, procedural history, and

issues on appeal.

       We review de novo the district court’s entry of judgment on the pleadings. Bank of N.Y.

v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). In so doing, we ask whether the

complaint “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Id. (quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)).

Because Payne acted pro se in filing her complaint, we construe its allegations liberally.

See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).

                                                   2
       As relevant here, Payne’s complaint alleges that in March 2007 defendants-appellees

“[s]earched and seized [her] at another persons [sic] home” and “[d]id not have court

permission.” J. App’x 15. Attached to the complaint was an arrest report indicating that the

officers who arrested Payne had neither a search warrant nor an arrest warrant.

       In general, the Fourth Amendment prohibits a police officer from entering a house or

apartment to make an arrest unless the officer has a warrant. Payton v. New York, 445 U.S. 573,

576 (1980). Absent some exception to that general rule, such as consent or exigent

circumstances, a warrantless entry violates the Fourth Amendment rights of any person whose

reasonable expectation of privacy is thereby invaded. Id. at 576, 589-90. A person may have a

reasonable expectation of privacy in another person’s home if she is an overnight guest in that

home, see Minnesota v. Olson, 495 U.S. 91, 96-97 (1990), or otherwise enjoys a similar “degree

of acceptance into the household,” Minnesota v. Carter, 525 U.S. 83, 90 (1998). However, a

person has no reasonable expectation of privacy in another person’s home if she is merely

“present for a business transaction” and only remains there for “a matter of hours.” Id.

       We conclude that Payne has sufficiently alleged that the police entered her host’s

apartment without a warrant in order to arrest her, but has not yet sufficiently alleged that Payne

herself had a reasonable expectation of privacy in that apartment. We also conclude that under

the circumstances presented here, Payne should be allowed to plead further facts showing that

she had such a reasonable expectation of privacy. We recognize that Payne did not seek leave to

amend from the district court, and that we are “ordinarily disinclined to exercise our discretion to

grant [a] belated request [for leave to amend] on appeal.” Kirsch v. Fleet Street, Ltd., 148 F.3d

149, 171 (2d Cir. 1998). But in light of the fact that Payne was not represented by counsel in the


                                                 3
district court proceedings, we conclude that her failure to seek leave to amend earlier should not

prevent her from doing so now.

         The parties also disagree as to whether Payne should be required to plead facts showing

that the officers’ warrantless entry into the apartment was justified by consent. A plaintiff

claiming that her Fourth Amendment rights were violated by a warrantless entry need not plead

facts affirmatively showing the absence of any exception to the warrant requirement, because the

absence of such an exception is not a part of the plaintiff’s prima facie case. See Ruggiero v.

Krzeminski, 928 F.2d 558, 563 (2d Cir. 1991) (noting that defendants may have the initial burden

of “producing evidence of consent or search incident to an arrest or other exceptions to the

warrant requirement”).

         We have considered the other arguments raised by the parties and find them to be without

merit. We therefore VACATE the dismissal with prejudice of Payne’s warrantless entry claim

based on her 2007 arrest, and REMAND so that Payne may plead further facts in support of that

claim.



                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




                                                 4
