                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3109
                                       ___________

                                NATHAN W. CLOUSER,
                                          Appellant

                                             v.

                 TODD JOHNSON; REGIS VOGLE; JOHN GOSHERT
                    ____________________________________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 1-12-cv-01870)
                    District Judge: Honorable Christopher C. Conner
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 3, 2017
             Before: SHWARTZ, COWEN and FUENTES, Circuit Judges

                              (Opinion filed: April 3, 2017)
                                     ___________

                                        OPINION *
                                       ___________

PER CURIAM

       Nathan Clouser appeals pro se from two orders of the District Court granting

summary judgment in favor of appellees on the remaining counts in his civil rights suit.



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
For the reasons discussed below and in the District Court’s opinions and orders, we will

affirm the District Court’s judgment.

       Clouser filed a complaint in the District Court pursuant to 42 U.S.C. § 1983. His

complaint alleged that a search of his residence in Dauphin County, Pennsylvania, and

his subsequent arrest and detention, led to a series of constitutional violations under the

Fourth, Fifth, Sixth, and Fourteenth Amendments. Among other things, Clouser alleged

that defendant Todd Johnson, a Dauphin County detective, included false statements in

the affidavit of probable cause in support of the warrant application to search Clouser’s

residence. Clouser also alleged that several days after his arrest, Johnson and defendant

Regis Vogel III, 1 a Dauphin County officer, confronted Clouser about two packages that

had been sent to his residence. Clouser alleged that Johnson knew that his mail had been

seized illegally and attempted to conceal that fact, although he did not allege that Johnson

seized the packages personally. Clouser also alleged that Johnson and Vogel improperly

obtained Clouser’s consent to search the packages at a time when Clouser said he had a

lawyer and purportedly should not have been questioned without counsel present. 2




1
 According to the appellees, “Vogel” is the correct spelling of this surname, although the
case caption uses “Vogle.”
2
  Subsequent to these events, a federal grand jury indicted Clouser on drug charges. He
filed a motion to suppress the evidence discovered during the search of his residence (on
Fourth Amendment grounds) and his mail packages (on Sixth Amendment grounds).
Prior to a ruling on that motion, Clouser pleaded guilty to one count of manufacturing,
distributing, and possessing with intent to distribute a substance containing a detectable
amount of fentanyl and methamphetamine; and two counts of using a communication
facility in the commission of a felony drug offense.
                                              2
      The defendants filed a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). Adopting the report and recommendation of the Magistrate Judge,

the District Court dismissed all claims against defendant John Goshert, a supervisor with

the Dauphin County Criminal Investigation Unit. The District Court dismissed all claims

against Vogel except the Sixth Amendment claim. The District Court allowed the

Fourth, Sixth, and Fourteenth Amendment claims to continue against Johnson, but

dismissed the Fifth Amendment claim against him. 3

      Following discovery, Vogel and Johnson filed a joint motion for summary

judgment based on the favorable termination rule of Heck v. Humphrey, 512 U.S. 477

(1994). The District Court granted judgment in favor of Johnson as to Clouser’s false-

imprisonment claim for the time period between April 11, 2011 and October 4, 2011—

i.e., between when Clouser was held on a warrant for earlier unrelated charges, and when

Clouser was moved from state to federal custody. The District Court denied Vogel and

Johnson’s motion in all other respects. With leave of the District Court, Johnson and

Vogel then filed a second summary judgment motion on the remaining claims. A

Magistrate Judge recommended that the motion be granted in part and denied in part—in

particular, the Magistrate Judge reasoned that Johnson may have acquiesced in the

allegedly unlawful seizure of Clouser’s packages and thereby violated the Fourth

Amendment. Disagreeing with the Magistrate Judge in that one respect, the District




3
 In the District Court, Clouser conceded that the Fifth Amendment claim against Johnson
should be dismissed.
                                            3
Court granted the second summary judgment motion in its entirety and entered final

judgment in favor of Vogel and Johnson. This appeal followed.

       On appeal, Clouser raises three issues. First, Clouser argues that the District Court

should not have granted summary judgment on the Fourth Amendment claim against

Johnson. Clouser contends that there was evidence in the record to show that Johnson

had knowledge that the packages may have been seized illegally. Second, Clouser argues

that his false arrest claim should have survived summary judgment based on his

allegation that Johnson knowingly or recklessly made false statements in support of the

warrant application that eventually led to Clouser’s arrest, and because the District Court

should not have construed this claim as a malicious prosecution claim that Heck v.

Humphrey barred. Third, Clouser argues that, considering the totality of the

circumstances, Johnson and Vogel’s request to search Clouser’s packages was a “critical

stage” in the criminal proceedings against him, such that Johnson and Vogel were

required under the Sixth Amendment to allow Clouser to consult with an attorney before

Clouser consented to the search. For the reasons set out below, we conclude that none of

these three arguments shows that the District Court erred in its summary judgment ruling.

       We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s

ruling on a motion for summary judgment de novo. Barefoot Architect, Inc. v. Bunge,

632 F.3d 822, 826 (3d Cir. 2011). Summary judgment is proper where, viewing the

evidence in the light most favorable to the nonmoving party and drawing all inferences in

favor of that party, there is no genuine issue of material fact and the moving party is



                                             4
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Kaucher v. County of

Bucks, 455 F.3d 418, 422-23 (3d Cir. 2006).

       First, we agree with the District Court that Clouser failed to put forth sufficient

evidence to create a genuine factual issue concerning whether Johnson was personally

involved in the alleged unlawful seizure of his packages, substantially for the reasons set

forth in the District Court’s opinion. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d

Cir. 1988) (“Personal involvement can be shown through allegations of personal direction

or of actual knowledge and acquiescence. Allegations of participation or actual

knowledge and acquiescence, however, must be made with appropriate particularity.”).

Clouser did not produce evidence of actual knowledge, even if mere acceptance of the

packages could be considered acquiescence. Clouser’s assertion that Johnson must have

known the seizure was potentially unlawful is only speculation and lacks factual support.

Clouser’s first argument on appeal therefore fails.

       Second, the District Court correctly granted summary judgment as to Johnson on

Clouser’s claim of false imprisonment. Clouser alleged that he was held unlawfully from

April 20, 2011, until October 4, 2011, based on Johnson’s alleged misdeeds in obtaining

Clouser’s arrest. We agree with the District Court that under the circumstances of this

case, Clouser’s claim was better construed as a malicious prosecution claim because he

was held in custody after April 20, 2011, pursuant to a warrant. See Myers v. Koopman,

738 F.3d 1190, 1195 (10th Cir. 2013); Antonelli v. Foster, 104 F.3d 899, 900 (7th Cir.

1997). Here, because the criminal proceeding against Clouser did not conclude in his

favor, any malicious prosecution claim would necessarily fail because under the

                                              5
favorable termination rule of Heck v. Humphrey the claim did not accrue. See Hector v.

Watt, 235 F.3d 154, 156 (3d Cir. 2000).

       To attempt to overcome that result, Clouser argues that under Wilson v. Russo,

212 F.3d 781, 783 (3d Cir. 2000), his false imprisonment claim should have survived

summary judgment—notwithstanding the application of the favorable termination rule—

because Johnson made false statements in order to obtain the warrant to search Clouser’s

residence. We agree, however, with the District Court’s conclusion that Clouser failed to

put forth sufficient evidence to create a genuine factual issue concerning both whether

Johnson “knowingly and deliberately” or “with a reckless disregard for the truth”

falsified a statement in order to procure the warrant, and also that the statements were

material or necessary to the probable cause finding. See Sherwood v. Mulvihill, 113 F.3d

396, 399 (3d Cir. 1997). Consequently, Clouser’s second argument on appeal fails.

       Clouser’s third argument on appeal, concerning his Sixth Amendment claim

against Johnson and Vogel, warrants more detailed discussion. Clouser alleged that

Johnson and Vogel violated his Sixth Amendment right to counsel when, on March 29,

2011—two weeks after his arrest—they pressed him to sign a “consent to a search form”

for a package addressed to Clouser. Clouser argued that because he had already retained

an attorney by that point, he should not have been questioned without counsel. Adopting

the Magistrate Judge’s report and recommendation, the District Court determined that the

officers were entitled to qualified immunity because they had not violated any “clearly

established” right under the Sixth Amendment. In particular, the District Court



                                             6
determined that it was not clearly established that a “consent to search” is a “critical

stage” of a criminal proceeding, such that the right to counsel applies.

       Qualified immunity is an affirmative defense that “shield[s] officials from

harassment, distraction, and liability when they perform their duties reasonably.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009). To overcome that immunity, the facts

must show (1) the violation of a constitutional right and (2) that the right was clearly

established at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201

(2001). A court may address these prongs in either order in light of the circumstances in

the particular case. Pearson, 555 U.S. at 236.

       A government official’s conduct violates clearly established law when, at the time

of the challenged conduct, every reasonable official would understand that what he is

doing violates the right alleged. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011);

Anderson v. Creighton, 483 U.S. 635, 640 (1987). The Supreme Court has emphasized

that “‘[w]e do not require a case directly on point’ before concluding that the law is

clearly established, ‘but existing precedent must have placed the statutory or

constitutional question beyond debate.’” Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (quoting

al-Kidd, 563 U.S. at 741); see also Williams v. Sec’y Pa. Dep’t of Corr., No. 14-1469,

___ F.3d ____, ____, 2017 WL 526483, at *14 (3d Cir. Feb. 9, 2017). We look first for

applicable Supreme Court precedent. If none exists, it may be possible that a “robust

consensus of cases of persuasive authority” in the Courts of Appeals could clearly

establish a right for purposes of qualified immunity. Taylor v. Barkes, 575 U.S. ____,

____, 135 S. Ct. 2042, 2044 (2015) (internal quotation marks omitted).

                                              7
       As interpreted by the Supreme Court, the Sixth Amendment guarantees that in all

criminal prosecutions the accused shall enjoy the right to have the assistance of counsel

for his defense at every “critical stage” in a criminal prosecution. Coleman v. Alabama,

399 U.S. 1, 9 (1970); Dellavecchia v. Sec’y Pa. Dep’t of Corr., 819 F.3d 682, 692-93 (3d

Cir. 2016). A “critical stage” is one in which “the accused required aid in coping with

legal problems or assistance in meeting his adversary.” United States v. Ash, 413 U.S.

300, 313 (1973). The question presented here is therefore whether it was clearly

established that the request for consent to search in the particular circumstances of this

case was a “critical stage” of Clouser’s criminal prosecution. See Saucier, 533 U.S. at

200-01 (instructing that a court must frame clearly established law “in light of the

specific context of the case, not as a broad general proposition.”); Werkheiser v. Pocono

Twp., 780 F.3d 172, 176-77 (3d Cir. 2015).

       No party in this case identified any Supreme Court precedent interpreting the Sixth

Amendment that would have put Johnson and Vogel on notice that, under the specific

circumstances presented here, they would violate Clouser’s Sixth Amendment right to

counsel if they asked Clouser for his consent to search his packages without an attorney

present. 4 And although caselaw reveals that it is a closer question than the appellees

suggest, there is also no consensus in the Courts of Appeals that Johnson and Vogel’s

actions would clearly have amounted to a constitutional violation.




4
 Clouser cites Supreme Court precedent concerning the Fifth Amendment right to
counsel, but that issue is not part of this appeal.
                                              8
       In United States ex rel. Daley v. Yeager, 415 F.2d 779 (3d Cir. 1969), we

considered whether obtaining a defendant’s consent to search his dwelling violated the

Fourth, Fifth, and Sixth Amendments when the defendant was questioned in his jail cell

after a preliminary hearing on murder charges. Citing Escobedo v. Illinois, 378 U.S. 478,

485-88 (1964), we held that “[o]nce the prosecution has commenced, law enforcement

officers may not secure concessions from an accused which circumvent the protections a

lawyer might provide.” 415 F.2d at 783. 5 In a case citing Daley, the Eighth Circuit

concluded that the government violated a defendant’s Sixth Amendment rights when

officers obtained a consent to search after assuring the defendant’s prospective lawyer

that they would not question the defendant without an attorney present. Hall v. Iowa, 705

F.2d 283, 290 & n.6 (8th Cir. 1983).

       Other authority points in the opposite direction. In United States v. Kon Yu-

Leung, 910 F.2d 33, 38-42 (2d Cir. 1990), the Second Circuit held that a post-indictment

request for consent to search was not a critical stage for purposes of the Sixth

Amendment right to counsel. The Second Circuit emphasized that “no confrontation

occurred, as in the case of a lineup, which would result in adverse consequences difficult

to remedy at trial,” and that “no evidence was generated, as in the case of incriminating

testimony, that was not already in existence and virtually certain to be available to the

government in due course[.]” Id. at 39-40. Citing Yu-Leung, the Eleventh Circuit

reached the same conclusion in United States v. Hidalgo, 7 F.3d 1566, 1570 (11th Cir.


5
 In Daley, however, one consideration was whether the defendant’s consent was truly
voluntary, in light of his mental illness and suggestibility. See id. at 783-84.
                                             9
1993). The Eleventh Circuit reasoned that “[t]he request for a consent to search is not a

trial-like confrontation where the absence of counsel poses a threat of substantial

prejudice to the accused like that posed by the absence of counsel at a pretrial lineup, or a

pretrial interrogation.” Id. “Instead, it is more analogous to a request for other types of

physical evidence, such as handwriting exemplars, blood samples, and the like, or to a

photographic display.” Id. The accused would therefore “have a meaningful

confrontation of the evidence against him through the ordinary trial processes.” Id.

Finally, the Sixth Circuit agreed with these two cases, albeit in a not precedential opinion.

United States v. Cooney, 26 F. App’x 513, 523-24 (6th Cir. 2002) (non-precedential).

       In light of these various holdings, we find no consensus of authority that the

request for a consent to search that occurred in the particular circumstances of this case

implicated a clearly established constitutional right. 6 Clouser’s third and final arguments

on appeal therefore fail as well.

       Consequently, we will affirm the District Court’s judgment.




6
 That said, we do not endorse Johnson and Vogel’s actions, and we caution government
officials to carefully consider that there may well be circumstances in which the Sixth
Amendment applies to requests for consent to search, as this Court held in United States
ex rel. Daley v. Yeager and as the Eighth Circuit concluded in Hall v. Iowa.
                                             10
