
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                              ___________________          No. 93-1370                                  STEPHEN S. CROOKER AND PAMELA A. CROOKER,                                Plaintiffs, Appellees,                                          v.                                PAUL METALLO, ET AL.,                               Defendants, Appellants.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Frank H. Freedman, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ___________________               Stephen S. Crooker and Pamela A. Crooker on brief pro se.               __________________     _________________               Scott Harshbarger, Attorney  General, and William  J. Meade,               _________________                         _________________          Assistant Attorney General, on brief for appellants.                                  __________________                                  September 29, 1993                                  __________________                 SELYA,  Circuit  Judge.   The  issue  presented in  this                 SELYA,  Circuit  Judge.                         ______________            appeal is whether the defendants, parole officers, violated a            clearly   established  constitutional   right   of  which   a            reasonable person would have known when, in August 1989, they            arrested plaintiff Stephen S. Crooker  at his home for sundry            parole violations.  The officers conducted a protective sweep            incident to  the  arrest.   Stephen  Crooker  and  his  wife,            Pamela, brought suit, pursuant to 42 U.S.C.    1983, alleging            that  the  search  violated  their  Fourth Amendment  rights.            Particularly, they allege that,  during the sweep, an officer            lifted  their mattress from its box spring and looked between            the two.1   The district  court denied the  defendants' claim            of qualified immunity.  The defendants appeal.  We reverse.                 When defendants executed the  arrest warrant for Stephen            Crooker,  they  "possesse[d]  a  reasonable belief  based  on            specific and articulable facts which, taken together with the            rational inferences from those facts,  reasonably warrant[ed]            the   officer[s]  in  believing,"  that  the  Crookers'  home            harbored an  individual, one Vincent Tondryk,  who "pos[ed] a            danger to the officer[s]  or others."  Maryland v.  Buie, 494                                                   ________     ____            U.S. 325,  327 (1990) (citations omitted);  see also Michigan                                                        ________ ________                                            ____________________            1.  The  defendants  deny that,  in  fact,  the mattress  was            lifted from  the box  spring.   That factual  dispute remains            unresolved.   Our  determination  of the  issue of  qualified            immunity  does not depend on resolution of that dispute as we            assume  arguendo that the  mattress search took  place in the                    ________            manner asserted by the plaintiffs.                                         -2-            v.  Long, 463 U.S. 1032,  1049-50 (1983); Terry  v. Ohio, 392                ____                                  _____     ____            U.S.  1,  21 (1968).    This  reasonable  belief permitted  a            protective sweep of the premises,  i.e., "a quick and limited                                               ____            search of premises, incident to [the] arrest and conducted to            protect  the safety of police officers or others."  Buie, 494                                                                ____            U.S. at 327; see also United States v. Curzi, 867 F.2d 36, 39                         ________ _____________    _____            n.2  (1st  Cir.  1989).    The  defendants,  therefore,  were            justified  in searching  the Crookers'  home for  Tondryk and            looking  in  places where  Tondryk  might  have been  hiding.            Although the district court  so found, it nevertheless denied            the  defendants' claim  of qualified  immunity on  the ground            that the search between  the mattress and box spring  was not            within the  proper confines of a protective  sweep because it            would not  be reasonable to expect  a person to be  hiding in            those environs.  Thus, the court reasoned, the search was not            permissible in the absence of a search warrant.                 It  is  true  that  Buie speaks  of  a  protective sweep                                     ____            "narrowly confined  to a  cursory visual inspection  of those            places in which a person might be hiding."  Buie, 494 U.S. at                                                        ____            327.  The facts of  Buie, however, did not present the  issue                                ____            of  the permissibility  of  a limited  search for  accessible            weapons (which  it is  not  unreasonable to  expect might  be            hidden   between  a  mattress   and  box   spring)  conducted            simultaneously with the search for a dangerous confederate of            the arrestee.   Thus, we  cannot say, even  today, that  Buie                                                                     ____                                         -3-            forecloses the  possibility that  such a scenario  is lawful.            Indeed,  the  Second  Circuit  recently  determined   that  a            protective sweep can include a search for weapons within easy                             ___            reach  of an  individual  whom the  officers have  reasonably            concluded is dangerous.  See  United States v. Hernandez, 941                                     ___  _____________    _________            F.2d  133,  137 (2d  Cir. 1991);  see  also United  States v.                                              _________ ______________            Lopez,  989  F.2d 24  (1st  Cir. 1993)  (upholding  a weapons            _____            search  where the police had ample basis for believing that a            dangerous  weapon was  lodged  close by,  that the  defendant            might not be  acting alone,  and that the  premises were  not            secure),  petition for cert. filed, (U.S. Jun. 23, 1993) (No.                      ________________________            93-5032); cf. United States v. Irizarry, 673 F.2d 554, 559 n*                      ___ _____________    ________            (1st Cir.  1982) (suggesting that a search  for weapons would            be unjustified where all  persons in a hotel room  were under            control and  the agents  knew  that no  one else  was on  the            premises).                 In analyzing a claim of qualified immunity, moreover, we            are  concerned  with  clearly established  constitutional  or            statutory  rights of  which a  reasonable officer  would have            known at the time he took action, here, in August 1989.  See,                                                                     ____            e.g., Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 228            ____  ____________________    ____________            (1st  Cir.  1992)  (explaining  that "the  touchstone  of  an            inquiry into qualified immunity  is whether the state actor's            behavior was  objectively reasonable, as a  matter of federal            law,   at  the   time  and   under  the   circumstances  then                                         -4-            obtaining"); Amsden v.  Moran, 904  F.2d 748,  751 (1st  Cir.                         ______     _____            1990) (similar),  cert. denied,  498 U.S. 1041  (1991).   The                              ____________            protective  sweep in  Hernandez  occurred, like  the  instant                                  _________            sweep,  in  1989, and,  significantly,  that  court drew  its            reasoning not only  from Buie, but also from Long and Terry -                                     ____                ____     _____            two opinions of the Court that predated 1989 and dwelt on the            balance  that  must  be  struck  between  the  need  for  law            enforcement officers to protect themselves and others and the            invasion which a search entails.  See Long, 463 U.S. at 1049-                                              ___ ____            52;  Terry,  392 U.S.  at 23-27;  see  also United  States v.                 _____                        _________ ______________            Elkins, 732  F.2d 1280,  1285 (6th Cir.  1984) ("Once  having            ______            entered the premises, the agents were then required to secure                                                       ________            all  persons therein and to  make a protective  sweep for the            weapons  Elkins was  known to  favor, for  the safety  of all            concerned.") (Emphasis supplied).                 In sum,  it may  well be that,  during the course  of an            otherwise   justified  protective   sweep  for   a  dangerous            individual,  thought to  be in  hiding, the  Fourth Amendment            permits a simultaneously conducted  limited search of  places            which might contain  a weapon readily accessible to  that as-            yet-undiscovered individual.  We need  not, and do not, reach            that  question  in  this  case, however,  for  the  operative            inquiry on  qualified immunity is not  whether the defendants            actually abridged the  plaintiffs' constitutional rights, but            whether  defendants'  conduct  was objectively  unreasonable,                                         -5-            given the constitutional  understandings then  current.   See                                                                      ___            Anderson v.  Creighton, 483  U.S. 635, 640  (1987); Davis  v.            ________     _________                              _____            Scherer, 468 U.S. 183, 190  (1984); Quintero de Quintero, 974            _______                             ____________________            F.2d at  228; Amsden, 904 F.2d at  751.  The uncertainty that                          ______            shrouds  the  question  here  means,  a  fortiori,  that  the                                                  ___________            defendants, in  1989, violated no clearly  established Fourth            Amendment right of which reasonable officers would have known            when  they  searched between  the  mattress  and box  spring.            After  all,  a state  actor is  neither  expected to  carry a            crystal  ball nor "to determine the manner in which the law's            grey  areas will be clarified and defined."  Borucki v. Ryan,                                                         _______    ____            827 F.2d 836, 838 (1st Cir. 1987).                 Finally, we believe it is important to note that nothing            approaching  a  full scale  search  occurred  in this  case.2            Stephen Crooker acknowledged that  the officers' sweep of the            premises,  including  the basement,  took  only  five to  ten            minutes,  and  that  the  officers spent  only  "a  couple of            minutes" in the bedroom.   Apart from the search  between the            mattress and box spring, nothing in  the record suggests that            the  officers  were  rummaging  aimlessly  about.    This  is            persuasive proof that safety, not  a search for evidence, was                                            ____________________            2.  We think  it is useful  to contrast what  transpired here            with the search  conducted in Chimel v.  California, 395 U.S.                                          ______     __________            752  (1969).   That foray  lasted between  45 minutes  and an            hour, id. at 754,  and comprised "a full-blown search  of the                  ___            entire house for evidence  of the crime for which  the arrest            was made."  Maryland v. Buie, 494 U.S. at 336.                        ________    ____                                         -6-            the  impetus for,  and guiding  force behind,  the protective            sweep at  issue here.  The Court has taught that a protective            "sweep  lasts  no longer  than  is  necessary to  dispel  the            reasonable  suspicion of  danger and in  any event  no longer            than  it  takes  to  complete   the  arrest  and  depart  the            premises."  Buie, 494 U.S. at 335-36.  The sweep conducted by                        ____            the defendants in this case fulfilled these criteria.                 We need go no  further.3  Because the record, read as it            must  be, in the light most flattering to the plaintiffs, see                                                                      ___            Quintero de Quintero, 974  F.2d at 227-28, shows conclusively            ____________________            that the  defendants are entitled to  qualified immunity, the            district  court erred  in  denying their  motion for  summary            judgment.                 Reversed.                 _________                                            ____________________            3.  In view of the result that we reach, we need not  address            defendants' asseveration, premised  on cases such  as Griffin                                                                  _______            v.  Wisconsin,  483  U.S. 868  (1987)  and  United  States v.                _________                               ______________            Cardona,  903 F.2d 60 (1st Cir. 1990), cert. denied, 498 U.S.            _______                                ____________            1049 (1991),  that their  status as parole  officers, coupled            with  Stephen  Crooker's  status  as  a  parolee,  created  a            diminished expectation of privacy and broadened the officers'            entitlement to conduct a warrantless search.                                         -7-
