     11-4404-cv
     Winfield, et al. v. Trottier

 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                              August Term, 2012
 6
 7       (Argued: October 5, 2012           Decided: March 6, 2013)
 8
 9                            Docket No. 11-4404-cv
10
11   - - - - - - - - - - - - - - - - - - - -x
12
13   MARIE WINFIELD and JASON WINFIELD,
14
15                     Plaintiffs-Appellees,
16
17               - v.-
18
19   DANIEL TROTTIER,
20
21                     Defendant-Appellant,
22
23   AIMEE NOLAN, STATE OF VERMONT,
24
25                     Defendants.
26
27   - - - - - - - - - - - - - - - - - - - -x
28
29         Before:           JACOBS, Chief Judge, POOLER and HALL,
30                           Circuit Judges.
31
32         A police officer appeals the denial of qualified

33   immunity by the United States District Court for the

34   District of Vermont in a claim under 42 U.S.C. § 1983

35   alleging that he violated the Fourth Amendment rights of a

36   motorist and her passenger when, while searching her car

37   with her consent during a traffic stop, he read a piece of

38   her mail.     We reverse.
 1                                 MICHAEL B. KIMBERLY, Mayer Brown
 2                                 LLP, Washington, DC for
 3                                 Appellees.
 4
 5                                 MEGAN J. SHAFRITZ, Assistant
 6                                 Attorney General, (Jana M.
 7                                 Brown on the brief) for, William
 8                                 H. Sorrell, Attorney General for
 9                                 the State of Vermont for
10                                 Appellant.
11
12   DENNIS JACOBS, Chief Judge:

13       Daniel Trottier (“Trottier”), a Vermont State Police

14   officer, appeals from an order entered in the United States

15   District Court for the District of Vermont (Reiss, J.),

16   denying his motion for qualified immunity in a claim brought

17   by motorist Marie Winfield (“Winfield”) under 42 U.S.C. §

18   1983, alleging that Trottier violated her Fourth Amendment

19   rights when, while searching her car with her consent during

20   a traffic stop, he read a piece of her mail.

21       At issue is the scope of Winfield’s consent to the

22   search of her car, which is determined by looking at what a

23   reasonable person would have understood by the exchange

24   between Trottier and Winfield.     We conclude that, while the

25   scope of Winfield’s consent was not limited to a search for

26   any particular object of contraband, it did not extend to

27   the text of her mail.   However, since this right was not

28   clearly established at the time of the search, Trottier is

29   entitled to qualified immunity.    We therefore reverse.

                                    2
1                               BACKGROUND

2        The district court found that the following facts were

3    undisputed.    On May 26, 2007, Winfield was driving north on

4    Interstate 89 in Vermont, en route to visit her father in

5    Montreal.    Trottier, a state trooper, stopped her for

6    driving twenty miles per hour over the limit, and was

7    inspired to search the car by certain things he deemed

8    suspicious:    The passenger, Winfield’s son Jason, avoided

9    making eye contact with him; and Winfield was eating a

10   Powerbar “in what he regarded as a hurried manner.”

11   Winfield v. Trottier, No. 5:08-cv-278, 2011 WL 4442933, at

12   *1 (D. Vt. Sept. 21, 2011).

13       As Trottier was waiting for verification of Winfield’s

14   identity, he approached the car and asked, “Ms.    Winfield,

15   you don’t have to if you don’t want to, but while we’re

16   waiting, would you mind coming back here for a minute

17   [behind the car] and talk[ing] to me for a second?”    She got

18   out and walked with Trottier to the back of her car while

19   State Trooper Aimee Nolan arrived on the scene, as backup.

20       The following exchange ensued:

21                    TROTTIER:    Listen, is there anything in
22               there I should know about? You seemed awfully
23               nervous when I was talking with you. . . . Your
24               hand was shaking and you’re--you had, like, a leg
25               tremor going on. No?

                                     3
1                  WINFIELD:    Not that I know of.
2                  TROTTIER:    Oh, Okay. Not that you know of,
3             or there’s nothing? It just kind of, you know,
4             piqued my interest there.
5                  WINFIELD:    Really?
6                  TROTTIER:    Because when I was talking with
7             you, you were shaking; your voice was shaking.

8        Winfield explained that she was “probably tired”

9    because her daughter’s high school graduation was the

10   previous night.   The conversation continued:

11                 TROTTIER:    Okay. Okay. There’s nothing in
12            there I should know about is there? No guns or
13            money?
14                 WINFIELD:    You can look if you want.
15                 TROTTIER:    Oh you don’t mind? Do you mind?
16            No--no large sums of money in there or--no? Okay.
17                 WINFIELD:    Be my guest.
18                 TROTTIER:    Okay.
19                 WINFIELD:    You can look.
20                 TROTTIER:    Okay. Here. Hold on one
21            second.
22                 WINFIELD:    Inside my trunk?
23                 TROTTIER:    Okay.
24                 WINFIELD:    I don’t know [inaudable]--
25                 TROTTIER:    Here. Do me a favor, okay?
26                 WINFIELD:    I don’t have anything.
27                 TROTTIER:    What’s that?
28                 WINFIELD:    No, I don’t have anything in
29            there. My--
30                 TROTTIER:    Okay. Oh, just stay over here
31            for a second. I don’t want you to get run over.
32            Do you mind?
33                 WINFIELD:    I was just going to pop my
34            trunk.
35                 TROTTIER:    Oh, that’s okay. Do you mind if
36            I look through--do--do you mind? You don’t mind?
37            Okay. Do me a favor. Stand over here for me.
38            You don’t have anything on you we should know
39            about, do you? No guns or bombs or anything like
40            that?

                                   4
1                      WINFIELD:     [Inaudible.]
2                      TROTTIER:     No? Okay.

3    Id. at *2-3.

4           After patting down Jason (with his consent), Trottier

5    searched the car.      Trottier, who admits he was not looking

6    for anything in particular, found an envelope addressed

7    either to or from a court, opened it,1 and read what was

8    inside.      It was a court document pertaining to the arrest of

9    Winfield’s husband “for possession,” and a letter that

10   Winfield had written to a judge.      Id. at *3 n.4.   After

11   finishing the search and finding nothing, he issued a

12   speeding citation and the Winfields proceeded on their way.

13          The Winfields sued, alleging, inter alia, violations of

14   the Fourth Amendment’s prohibition of unreasonable searches

15   and seizures.      The district court concluded that “no

16   reasonable understanding of the exchange between Ms.

17   Winfield and Trooper Trottier could be construed as consent

18   for Trooper Trottier to read Ms. Winfield’s mail, regardless

19   of to whom or from whom [the mail] was addressed.”      Id. at

20   *10.       The court denied qualified immunity because “[i]t was

            1
              The record on appeal does not indicate whether
     Trottier unsealed the envelope. The district court noted,
     in its findings of undisputed facts, that Trottier simply
     “removed from its envelope and read” the document inside.
     Id. at *3.
                                       5
1    well-established at the time of the search that ‘[i]t is a

2    violation of a suspect’s Fourth Amendment rights for a

3    consensual search to exceed the scope of the consent

4    given.’”    Id. at *11 (quoting United States v. McWeeney, 454

5    F.3d 1030, 1034 (9th Cir. 2006)) (second alteration in

6    original)).

7

8                               DISCUSSION

9        The Court reviews de novo a decision on a motion for

10   summary judgment.   Mario v. P & C Food Mkts., Inc., 313 F.3d

11   758, 763 (2d Cir. 2002); see also Miller v. Wolpoff &

12   Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).     Summary

13   judgment is appropriate if there is no genuine dispute as to

14   any material fact and the moving party is entitled to

15   judgment as a matter of law.   Miller, 321 F.3d at 300.    In

16   assessing a motion for summary judgment, the Court is

17   “required to resolve all ambiguities and draw all

18   permissible factual inferences in favor of the party against

19   whom summary judgment [was granted].”   Terry v. Ashcroft,

20   336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks

21   omitted).

22


                                    6
1                                 I

2        “Qualified immunity protects officials from liability

3    for civil damages as long as ‘their conduct does not violate

4    clearly established statutory or constitutional rights of

5    which a reasonable person would have known.’”     Gilles v.

6    Repicky, 511 F.3d 239, 243 (2d Cir. 2007) (quoting Harlow v.

7    Fitzgerald, 457 U.S. 800, 818 (1982)).     In deciding

8    qualified immunity, courts ask whether the facts shown [i]

9    “make out a violation of a constitutional right,” and [ii]

10   “whether the right at issue was clearly established at the

11   time of defendant’s alleged misconduct.”    Pearson v.

12   Callahan, 555 U.S. 223, 232 (2009) (internal quotation marks

13   omitted).

14       To be clearly established, “[t]he contours of the right

15   must be sufficiently clear that a reasonable official would

16   understand that what he is doing violates that right.”

17   Anderson v. Creighton, 483 U.S. 635, 640 (1987).     In this

18   way, qualified immunity shields official conduct that is

19   “‘objectively legally reasonable in light of the legal rules

20   that were clearly established at the time it was taken.’”

21   X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999)

22   (alterations omitted) (quoting Anderson, 483 U.S. at 639);


                                  7
1    see also Taravella v. Town of Wolcott, 599 F.3d 129, 134-35

2    (2d Cir. 2010).

3

4                                  II

5        Plaintiffs challenge appellate jurisdiction on the

6    ground that the qualified immunity inquiry in this case

7    turns on a question of fact: the reasonableness

8    determination as to the scope of Winfield’s consent.

9        We have appellate jurisdiction over this interlocutory

10   appeal.   “[A] district court’s denial of a claim of

11   qualified immunity, to the extent that it turns on an issue

12   of law, is an appealable ‘final decision’ within the meaning

13   of 28 U.S.C. § 1291 notwithstanding the absence of a final

14   judgment.”   Mitchell v. Forsyth, 472 U.S. 511, 529 (1985)

15   (emphasis added).   An appealable order therefore cannot turn

16   on a district court decision as to “what occurred, or why an

17   action was taken or omitted, but [must related to] disputes

18   about the substance and clarity of pre-existing law.”    Ortiz

19   v. Jordan, --- U.S. ---, 131 S. Ct. 884, 893 (2011); see

20   also Britt v. Garcia, 457 F.3d 264, 271-72 (2d Cir. 2006).

21

22


                                   8
1                                  A

2        “The standard for measuring the scope of a suspect’s

3    consent under the Fourth Amendment is that of ‘objective’

4    reasonableness--what would the typical reasonable person

5    have understood by the exchange between the officer and the

6    suspect?”   Florida v. Jimeno, 500 U.S. 248, 251 (1991).

7        As there are no disputed facts in this case,

8    Plaintiffs’ argument is essentially that an appeals court

9    lacks jurisdiction over an interlocutory appeal that turns

10   on a determination of reasonableness.   But in other

11   contexts, courts hold that reasonableness may be a question

12   of law when the facts are undisputed.   See, e.g., Kent v.

13   Katz, 312 F.3d 568, 577 (2d Cir. 2002) (“[W]hen the

14   defendant accepts . . . the plaintiff’s version of the

15   facts, the defendant may immediately appeal the denial of [a

16   summary judgment] motion because the objective

17   reasonableness of the undisputed actions may then be

18   susceptible to resolution as a matter of law.” (emphasis

19   added) (citing Salim v. Proulx, 93 F.3d 86, 91 (2d Cir.

20   1996))); Huang v. Attorney Gen., 620 F.3d 372, 385 (3d Cir.

21   2010) (“[I]n the context of qualified immunity for

22   constitutional torts, the reasonableness of a state actor’s


                                   9
1    conduct based on undisputed facts is subject to de novo

2    review as a question of law.” (emphasis added)); Vaughn v.

3    Ruoff, 253 F.3d 1124, 1128 (8th Cir. 2001) (“If the material

4    predicate facts are undisputed, the reasonableness inquiry

5    is a question of law.”).

6        Plaintiffs fail to cite a single case holding that an

7    appellate court lacks jurisdiction to review a ruling on

8    qualified immunity when the facts are undisputed.2   Instead,

9    they cite cases such as Hatheway v. Thies, 335 F.3d 1199,

10   1204 (10th Cir. 2003), in which the question was whether

11   certain facts were disputed, and Copar Pumice Co. v. Morris,

12   639 F.3d 1025, 1027 (10th Cir. 2011), in which “[t]he

13   parties provide[d] distinctly differing accounts of the

14   ensuing encounter.”

15


          2
              Plaintiffs cite cases in which the scope of
     consent to search is a question of fact reviewed for clear
     error. See United States v. Gandia, 424 F.3d 255, 265 (2d
     Cir. 2005); United States v. Garrido-Santana, 360 F.3d 565,
     570 (6th Cir. 2004); United States v. Rosborough, 366 F.3d
     1145, 1150 (10th Cir. 2004). Gandia, the only Second
     Circuit case plaintiffs cite, turned on facts that were
     disputed. 424 F.3d at 265. Moreover, these cases were
     criminal cases in which the court set out the standard of
     review without touching on the question presented here,
     whether there is appellate jurisdiction to review a denial
     of qualified immunity involving the scope of consent.

                                  10
1        In this case involving no disputed facts, we have

2    appellate jurisdiction, under Mitchell v. Forsyth, 472 U.S.

3    511 (1985), to decide whether there was a violation of a

4    constitutional right.

5                                 B

6        We also have appellate jurisdiction to decide whether

7    the right at issue was “clearly established.”   See Moore v.

8    Andreno, 505 F.3d 203, 207 (2d Cir. 2007) (“Nevertheless,

9    our appellate jurisdiction over this case is not in doubt.

10   The district court’s holding that the law governing

11   third-party consent searches was clearly established is a

12   conclusion of law and is thus immediately appealable.”);

13   Salim, 93 F.3d at 89 (finding it “easy to apply” Mitchell v.

14   Forsyth “whenever a defendant’s interlocutory appeal

15   challenges a denial of a qualified immunity defense on the

16   ground that the district court erred in ruling that the law

17   the defendant is alleged to have violated was clearly

18   established”).

19

20                               III

21       Courts may “exercise their sound discretion in deciding

22   which of the two prongs of the qualified immunity analysis


                                  11
1    should be addressed first in light of the circumstances in

2    the particular case at hand.”        Pearson v. Callahan, 555 U.S.

3    223, 236 (2009).    Here, we analyze both because it is

4    “‘difficult to decide whether [the] right [in this case] is

5    clearly established without deciding precisely what the

6    existing constitutional right happens to be.’”       Id. (quoting

7    Lyons v. Xenia, 417 F.3d 565, 581 (6th Cir. 2005) (Sutton,

8    J., concurring)).    We consider each qualified immunity

9    inquiry in turn.

10                                   A

11          The Fourth Amendment is not offended by a warrantless,

12   suspicionless search to which a suspect consents.       Florida

13   v. Jimeno, 500 U.S. 248, 250-51 (1991).       In general, “an

14   individual who consents to a search of his car should

15   reasonably expect that readily-opened, closed containers

16   discovered inside the car will be opened and examined.”

17   United States v. Snow, 44 F.3d 133, 135 (2d Cir. 1995).

18          “A suspect may of course delimit as he chooses the

19   scope of the search to which he consents.”       Jimeno, 500 U.S.

20   at 252.    To determine the parameters of consent, we ask

21   “what would the typical reasonable person have understood by

22   the exchange between the officer and the suspect?”       Id. at

23   251.

                                     12
1        “The scope of a search is generally defined by its

2    expressed object.”   Id.   In Jimeno, a police officer who

3    believed he overheard the defendant arranging an illegal

4    drug transaction over a public telephone followed the

5    defendant’s car and pulled him over to give him a ticket

6    when he made an illegal turn.         Id.   The officer then

7    expressed his suspicion and asked, and was granted,

8    permission to search the car for drugs.         Id. at 249-50.   A

9    brown paper bag on the floor of the car was opened and

10   yielded cocaine.   Id. at 250.        The Supreme Court held that

11   the search was lawful: If a suspect’s “consent would

12   reasonably be understood to extend to a particular

13   container, the Fourth Amendment provides no grounds for

14   requiring a more explicit authorization.”         Id. at 252.

15       Here, Winfield’s consent was not limited to a search

16   for guns or money because Trottier’s full question did not

17   convey any “expressed object” of the search: “There’s

18   nothing in there I should know about is there?         No guns or

19   money?”   The open-ended question reached “anything” he

20   should “know about,” of which guns and money were examples.

21   A typical reasonable person would not think that Winfield’s

22   consent was limited to places that could hold guns or money.

23   Winfield’s consent authorized a search for drugs or smuggled

                                      13
1    cigarettes or child pornography as things Trottier should

2    “know about,” even in places that could contain neither guns

3    nor large sums of money.   This case is nothing like Jimeno;

4    Trottier did not tell Winfield that he was looking for (or

5    suspected she had) any particular kind of contraband.3

6        Nevertheless, Winfield’s consent did not arguably

7    extend to Trottier’s reading her mail.    He did not, for

8    example, get specific consent to search for evidence of

9    extortion by mail or securities fraud.    The Fourth Amendment

10   specifically protects “[t]he right of the people to be

11   secure in their . . . papers.”     U.S. Const. amend. IV.

12   Reading a person’s personal mail is a far greater intrusion

13   than a search for contraband because it can invade a

14   person’s thoughts.   See United States v. Dichiarinte, 445


          3
              Winfield arguably limited the scope of her consent
     to the trunk of the car. She repeatedly referred to her
     trunk during her interaction with Trottier. Moreover,
     Trottier asked Winfield, “there’s nothing in there?” while
     standing with her at the rear of her car. See United States
     v. Neely, 564 F.3d 346, 349-51 (4th Cir. 2009) (concluding
     that scope of consent was impliedly limited to trunk of car
     based on surrounding circumstances). We need not decide the
     issue because even if Winfield arguably limited her consent
     in this way, a reasonable officer in Trottier’s place could
     believe that the scope was not so limited. See Taravella v.
     Town of Wolcott, 599 F.3d 129, 134-45 (2d Cir. 2010) (“[T]he
     qualified immunity defense also protects an official if it
     was objectively reasonable for him at the time of the
     challenged action to believe his acts were lawful.”
     (internal quotation marks omitted)).
                                   14
1    F.2d 126, 130 n.4 (7th Cir. 1971) (“The fact that the

2    defendant submitted to a degree of intrusion upon his

3    privacy by permitting the agents to enter his home and

4    rummage through his personal property does not mean that the

5    much greater intrusion on his privacy resulting from

6    government agents’ reading his personal papers must

7    automatically be allowed.”).   Given this greater intrusion,

8    the typical reasonable person would not assume that consent

9    to a general search of a car for contraband would include

10   consent to read personal papers.    Once Trottier opened the

11   envelope and discovered neither large sums of money nor

12   contraband,4 he should have moved on to search the rest of

13   the car.   Trottier exceeded the scope of Winfield’s consent

14   when he read the letter.

15       Trottier argues that he read her mail because he

16   thought it might contain evidence of a parole or probation

17   violation.   That is a conceivable rationale for reading

18   mail, just as Trottier might have perused love letters for

19   evidence of statutory rape, or brokerage receipts for

20   evidence of insider trading.   But the issue is whether a

21   reasonable person would believe that the consent given by


          4
              We assume without deciding that the envelope could
     have contained contraband.
                                    15
1    Winfield authorized such a search for such a purpose.    We

2    think not.   And Trottier cites no persuasive authority in

3    his support.5

4        “[T]he ultimate touchstone of the Fourth Amendment is

5    ‘reasonableness.’”   Brigham City, Utah v. Stuart, 547 U.S.

6    398, 403 (2006).   A typical reasonable person would not

7    assume that Winfield gave Trottier consent to read her

8    personal mail.   Therefore, Trottier violated Winfield’s

9    Fourth Amendment right to be free from unreasonable

10   searches.


          5
               We are unpersuaded by the one case holding that
     generalized consent to search an area grants police the
     authority to read documents found in that area. United
     States v. De La Rosa, 922 F.2d 675, 679 (11th Cir. 1991).
     The rest are easily distinguishable. In United States v.
     Kwan, No. 02 CR. 241, 2003 WL 21180401, at *6 (S.D.N.Y. May
     20, 2003), the defendant authorized the police to “look
     around,” knowing they were investigating a possible theft of
     confidential documents. Id. at *1; cf. Jimeno, 500 U.S. at
     252. Moreover, the court focused on whether Kwan had given
     the agents consent to search in his desk, not read his
     papers. Id. at *6.
          The search in United States v. Vaneenwyk was a lawful
     search incident to arrest; so the discussion as to scope of
     consent was dicta. 206 F. Supp. 2d 423, 425 (W.D.N.Y.
     2002).
          In United States v. Reyes, 922 F. Supp. 818, 822
     (S.D.N.Y. 1996), and United States v. Galante, No. 94 Cr.
     633, 1995 WL 507249, at *2 (S.D.N.Y. Aug. 25, 1995), the
     officers read no personal papers; they searched the digital
     memory of pagers and cell phones found in a car they had
     consent to search. See Smith v. Maryland, 442 U.S. 735,
     745-46 (1979) (holding that defendants have no legitimate
     expectation of privacy in numbers they dialed or numbers
     that dialed them).
                                   16
1                                  B

2        Trottier is entitled to qualified immunity if the right

3    he violated was not “clearly established” at the time of the

4    events at issue.   Saucier v. Katz, 533 U.S. 194, 201 (2001).

5    “The relevant, dispositive inquiry in determining whether a

6    right is clearly established is whether it would be clear to

7    a reasonable officer that his conduct was unlawful in the

8    situation he confronted.”   Id. at 202.

9        We must first determine “the level of generality at

10   which the relevant ‘legal rule’ is to be identified.”

11   Anderson v. Creighton, 483 U.S. 635, 639 (1987).     To do so,

12   we should “‘balance . . . the interests in vindication of

13   citizens’ constitutional rights and in public officials’

14   effective performance in their duties.’”   Id.    (quoting

15   Davis v. Scherer, 468 U.S. 183, 195 (1984)).     The right must

16   be defined “in a more particularized, and hence more

17   relevant, sense: The contours of the right must be

18   sufficiently clear that a reasonable official would

19   understand that what he is doing violates that right.”       Id.

20   at 640.

21       The district court defined the right at a level so

22   general as to be “insufficiently clear”: “‘[I]t is a


                                   17
1    violation of a suspect’s Fourth Amendment rights for a

2    consensual search to exceed the scope of the consent

3    given.’”   Winfield v. Trottier, No. 5:08-cv-278, 2011 WL

4    4442933, at *11 (D. Vt. Sept. 21, 2011) (alteration in

5    original) (quoting United States v. McWeeney, 454 F.3d 1030,

6    1034 (9th Cir. 2006)).

7        The right at issue is properly stated as follows: It is

8    a Fourth Amendment violation when a police officer reads a

9    suspect’s private papers, the text of which is not in plain

10   view, while conducting a search authorized solely by the

11   suspect’s generalized consent to search the area in which

12   the papers are found.    No prior case in the Second Circuit

13   has so held.   Accordingly, Trottier’s actions were

14   “‘objectively legally reasonable in light of the legal rules

15   that were clearly established at the time it was taken,’”

16   X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999)

17   (alterations omitted) (quoting Anderson, 483 U.S. at 639),

18   and he is entitled to qualified immunity.

19                              *   *    *

20       The district court’s decision denying Trottier’s motion

21   for summary judgment is reversed and the case is remanded to

22   the district court with instructions to enter judgment for

23   Trottier on the ground of qualified immunity.

                                    18
