06-3623-cv Moore v. Andreno

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term 2006 5 (Argued: February 7, 2007 Decided: October 22, 2007) 6 Docket Nos. 06-3623-cv(L), 06-3748(XAP) 7 -----------------------------------------------------x 8 RICHARD B. MOORE, 9 10 Plaintiff-Appellee-Cross-Appellant, 11 12 -- v. -- 13 14 JOSEPH A. ANDRENO, DELAWARE COUNTY DEPUTY SHERIFF AND 15 KURT R. PALMER, DELAWARE COUNTY DEPUTY SHERIFF, 16 17 Defendants-Cross-Claimants-Appellants- 18 Cross-Appellees, 19 20 COUNTY OF DELAWARE AND THOMAS MILLS, DELAWARE COUNTY 21 SHERIFF, 22 23 Defendants-Cross-Claimants, 24 25 RUTH M. SINES, 26 27 Defendant-Cross-Defendant. 28 29 -----------------------------------------------------x 30 31 B e f o r e : WALKER and SACK, Circuit Judges, and DANIELS, 32 District Judge.*

33 Appeal by Defendants Andreno and Palmer from a judgment of

34 the United States District Court for the Northern District of New

35 York (Thomas J. McAvoy, Judge) denying their motion for summary

36 judgment. Because the law governing third-party consent searches

* 1 The Honorable George B. Daniels, of the United States 2 District Court for the Southern District of New York, sitting by 3 designation.

-1- 1 is unsettled, and because defendants made a reasonable mistake in

2 applying that law to the situation with which they were

3 confronted, we hold that defendants are entitled to qualified

4 immunity and the district court erred in denying them summary

5 judgment.

6 REVERSED and REMANDED.

7 FRANK W. MILLER, East 8 Syracuse, N.Y., for 9 Defendants-Cross-Claimants- 10 Appellants-Cross-Appellees. 11 12 TERRENCE P. O’LEARY, Walton, 13 N.Y., for Plaintiff-Appellee- 14 Cross-Appellant.

15 JOHN M. WALKER, JR., Circuit Judge:

16 Courts have long acknowledged that a person has the right to

17 establish a private sanctum in a shared home, a place to which he

18 alone may admit or refuse to admit visitors. Yet, with the

19 recurrence of domestic violence in our society, we are loath to

20 assume that a man may readily threaten his girlfriend, take her

21 belongings, lock her out of part of his house, and then invoke

22 the Fourth Amendment to shield his actions. Deputies Joseph A.

23 Andreno and Kurt R. Palmer, responding to an emergency call, were

24 faced with reconciling these two competing interests. While they

25 misapplied the relevant constitutional calculus, they are police

26 officers, not lawyers or mathematicians. And thus, because the

27 law governing the authority of a third party to consent to the

28 search of an area under the predominant control of another is

-2- 1 unsettled, and because Deputies Andreno and Palmer made a

2 reasonable mistake in applying that law to the situation with

3 which they were confronted, the district court erred in denying

4 them summary judgment on qualified immunity grounds.

5 BACKGROUND

6 Richard B. Moore and Ruth M. Sines were on-again, off-again

7 lovers.1 They lived together in Moore’s home for a period of

8 time in 1996-1997 and again in 2001-2002. Sines had a key to

9 Moore’s home; her furniture was there and she paid some of the

10 bills. However, Sines was subject to certain restrictions: her

11 children lived with their fathers and Moore’s study was “off

12 limits” to her, and it was undisputed that Moore, as she put it,

13 “always kept it locked.”

14 On or about April 9, 2002, while traveling to New York from

15 Tennessee, Moore and Sines had an argument, and Moore threatened

16 to kill Sines. Shortly after their return two days later to

17 Moore’s home in Delaware County, New York, Sines decided to move

18 out and had begun to pack her belongings when she discovered that

19 her helmet and snorkeling equipment were missing. Sines “went

20 upstairs to see what had been going on upstairs in the last two

21 days,” suspecting that Moore had moved her effects. Upstairs,

1 1 Like the district court, we rely on the facts set forth in 2 defendants’ statement of material facts in light of the 3 plaintiff’s failure to respond timely to the defendants’ summary 4 judgment motion.

-3- 1 she noticed two new locks on the door to Moore’s study. Thinking

2 that her missing equipment might be in Moore’s study, Sines cut

3 the locks with a bolt cutter.

4 Sometime thereafter, Sines received a telephone call from an

5 unidentified caller. Fearing that it might be Moore and that he

6 could be en route to his home and bent on violence, Sines called

7 the Delaware County Sheriff’s Department. The Sheriff’s

8 Department dispatched Deputies Andreno and Palmer to the scene.

9 Upon their arrival, a “hysterical” Sines requested the

10 Deputies’ assistance in retrieving her belongings from Moore’s

11 study.2 She explained that she feared that Moore might return at

12 any moment. She also informed the Deputies that she “wasn’t

13 allowed in th[e] [study] unless [Moore] was there” and that she

14 had cut the locks off the door. She may also have informed them

15 that the Deputies were likely to find marijuana in the study.

16 In the company of the Deputies, Sines entered the study and

17 searched it, including by opening a desk drawer and rummaging in

18 a closet. In both places, Sines discovered drugs and drug

19 paraphernalia.3 The Deputies then seized the drugs.

2 1 It is not clear from the record whether Sines entered 2 Moore’s study prior to the arrival of the Deputies in order to 3 verify whether or not her helmet and snorkeling equipment were, 4 in fact, in that room -- and if not, why not. She presumably had 5 an opportunity to do so, as she cut the bolts prior to calling 6 the Sheriff’s Department. 3 1 Sines found a medical bag or briefcase in the closet. Only 2 after opening it -- perhaps thinking her snorkeling equipment

-4- 1 On May 8, 2003, a state grand jury indicted Moore on two

2 counts of criminal possession of a controlled substance in the

3 fourth degree and one count of criminal possession of a

4 controlled substance in the fifth degree. On February 9, 2004,

5 the county court, after suppressing the evidence taken from the

6 scene, dismissed the indictment.

7 Moore then filed suit in the United States District Court

8 for the Northern District of New York against, principally,4

9 Deputies Andreno and Palmer, asserting claims under

1981, 1983, 1985, and state law. The gravamen of his complaint

11 is that the Deputies’ entry into his study and seizure of his

12 drugs violated the Fourth Amendment to the United States

13 Constitution. Moore does not dispute the legality of the

14 Deputies’ entry into his home; he contests only the narrower, and

15 more nettlesome, question of their entry into and search of his

16 study. Cf. United States v. Karo,

(1984)

17 (O’Connor, J., concurring).

18 Defendants Andreno and Palmer moved for summary judgment,

19 arguing in the alternative that their search of the study was not

20 unconstitutional or, if it was, that they were nevertheless

1 might be in the medical bag -- did she discover the drugs. 4 1 Moore also named as defendants the County of Delaware, its 2 Sheriff Thomas Mills, and Ruth Sines. The district court 3 dismissed his claims against those defendants, and he has not 4 appealed.

-5- 1 entitled to qualified immunity.

2 The district court (Thomas J. McAvoy, Judge) first

3 considered whether Moore had properly alleged a constitutional

4 violation. The district court inquired whether Sines had actual

5 or apparent authority to consent to a search of the study, or

6 whether other exigent circumstances justified the search. The

7 district court noted that “[a] third party may validly grant the

8 requisite consent if she has joint access or control of the

9 property for most purposes,” Moore v. Andreno, No. 3:05-cv-0175,

10

, at *3 (N.D.N.Y. July 17, 2006), and acknowledged

11 that generally when “co-occupants are residing together not as

12 mere roommates, but as part of an intimate relationship, social

13 expectations are that the co-occupants of the home enjoy full

14 access to the entire home,”

. The district court

15 nevertheless concluded that “a fair-minded trier of fact could

16 reasonably conclude that [Moore] maintained exclusive control

17 over the study and that Sines did not have actual, apparent, or

18 implied authority to consent to entry into that room.”

at

19 *7. The district court likewise held that exigent circumstances

20 could not justify the Deputies’ entry into the study. Although

21 Sines had complained to the Sheriff’s Department of possible

22 domestic violence, her allegations, the district court explained,

23 were stale: they “pertained to conduct that occurred several days

24 earlier. . . . There was nothing urgent or imminent.”

at

-6- 1 *10. The district court therefore held that Moore had

2 “established a colorable claim of a constitutional violation.”

3

.

4 The district court next considered whether the Deputies were

5 entitled to qualified immunity, and denied it. The district

6 court held that “[i]t was clearly established at all times

7 relevant hereto that third-party consent is valid” only under

8 certain, well-defined circumstances.

. Without

9 extended discussion, the district court also held that no

10 reasonable officer could have believed that exigent circumstances

11 justified the search.

. The Deputies appealed.

12 DISCUSSION

13 The Deputies argue that the district court misapplied the

14 law governing third-party consent searches and searches

15 predicated upon exigent circumstances. First, the Deputies

16 contend that the “lower court erred when it concluded that the

17 Deputies could not reasonably have believed that Sines had the

18 authority to enter into [Moore’s] study.” Appellants’ Br. at 20.

19 Second, they liken their behavior to that of the officers in

20 United States v. Miller,

(2d Cir. 2005), who believed

21 that the area they searched harbored an individual posing a

22 danger to others on the scene; on the basis of this comparison,

23 they urge us to reverse the district court’s conclusion that

24 exigent circumstances did not justify the search of Moore’s

-7- 1 study.

2 The Deputies also argue that the district court improperly

3 denied them qualified immunity. Whether or not the search of

4 Moore’s study was unconstitutional, they say, it was not so

5 egregious a constitutional violation that reasonable minds could

6 not differ as to its putative legality, especially in light of

7 the confusion in the law surrounding the scope of co-occupants’

8 authority to consent to searches of shared premises.

9 As a general rule, the denial of summary judgment is not

10 immediately appealable. See

. “Under the

11 collateral order doctrine, however, [we will review] the denial

12 of a qualified-immunity-based motion for summary judgment . . .

13 to the extent that the district court has denied the motion as a

14 matter of law.” O’Bert ex rel. Estate of O’Bert v. Vargo, 331

(2d Cir. 2003). Unlike in most such appeals,

16 however, the plaintiff here has not filed a statement of material

17 facts, and so, like the district court, we are unable to accept

18 his facts for purposes of deciding whether the Deputies may

19 properly invoke qualified immunity. Cf. Salim v. Proulx,

(2d Cir. 1996) (permitting immediate appeal when

21 defendants accepted plaintiff’s version of the facts).

22 Nevertheless, our appellate jurisdiction over this case is

23 not in doubt. The district court’s holding that the law

24 governing third-party consent searches was clearly established is

-8- 1 a conclusion of law and is thus immediately appealable. See

2 Proulx,

(noting that the collateral order rule is

3 “easy to apply” when a defendant challenges a denial of qualified

4 immunity on the argument “that the district court erred in ruling

5 that the law the defendant is alleged to have violated was

6 clearly established”). Moreover, while we think it a closer

7 question, the district court’s conclusion that “it cannot be said

8 that the Deputies acted reasonably under the circumstances” is

9 also immediately appealable. Moore,

, at *9. The

10 district court’s determination on that score did not require

11 resolution of disputed facts; rather, the district court came to

12 its decision on the basis of the uncontroverted, albeit one-

13 sided, record before it. In light of the plaintiff’s counsel’s

14 failure to oppose the defendants’ motion, the only version of

15 facts that the court had before it -- and therefore the

16 undisputed version of the facts -- was that proffered by the

17 defendants.

18 And so, we now turn to the inquiry into the merits of a

19 qualified immunity defense:

20 The first step in a qualified immunity inquiry is to 21 determine whether the alleged facts demonstrate that a 22 defendant violated a constitutional right. If the 23 allegations show that a defendant violated a constitutional 24 right, the next step is to determine whether that right was 25 clearly established at the time of the challenged action -- 26 that is, “whether it would be clear to a reasonable officer 27 that his conduct was unlawful in the situation he 28 confronted.” A defendant will be entitled to qualified 29 immunity if either (1) his actions did not violate clearly

-9- 1 established law or (2) it was objectively reasonable for him 2 to believe that his actions did not violate clearly 3 established law. 4 5 Iqbal v. Hasty,

(2d Cir. 2007) (citations

6 omitted) (quoting Saucier v. Katz,

, 202 (2001)).5

7 We address these steps in order, beginning with the question of

8 whether the Deputies’ conduct, as alleged, violated a

9 constitutional right. We review the district court’s conclusions

10 de novo. Savino v. City of New York,

(2d Cir.

11 2003).

12 I. The Constitutional Violation

13 A. Third-Party Consent

14 The Fourth Amendment forbids “unreasonable” searches and

15 seizures. This constitutional bulwark against government

16 intrusion into the lives of private citizens is made up of an

17 interlacing web of standards and rules. For instance, “[w]e must

18 balance the nature and quality of the intrusion on the

19 individual’s . . . interests against the importance of the

20 governmental interests alleged to justify the intrusion,” United

21 States v. Place,

(1983), under the “totality of

5 1 Despite continued criticism of this “rigid order of battle,” 2 see Scott v. Harris,

, 1774 n.4 (2007) (internal 3 quotation marks omitted), unless and until the Supreme Court 4 heeds the plea to overrule Saucier, we will continue to ask first 5 whether a constitutional violation has occurred and only then ask 6 whether defendants are nevertheless entitled to qualified 7 immunity. Cf. Pierre N. Leval, Judging Under the Constitution: 8 Dicta About Dicta,

, 1275 (2006).

-10- 1 the circumstances,” United States v. Knights,

, 118

2 (2001) (internal quotation marks omitted). Yet the Supreme Court

3 has also admonished that a warrantless search is “per se

4 unreasonable . . . subject only to a few specifically established

5 and well-delineated exceptions.” Schneckloth v. Bustamonte, 412

, 219 (1973) (omission in original) (internal quotation

7 marks omitted).

8 In United States v. Matlock, the Supreme Court explicated

9 one such “well-delineated” exception: that pertaining to

10 “search[es] of property, without warrant and without probable

11 cause, but with proper consent voluntarily given.”

,

12 165-66 (1974). Such consent may be given by a third party. As

13 the Court has explained,

14 the authority which justifies the third-party consent . . . 15 [rests on] mutual use of the property by persons generally 16 having joint access or control for most purposes, so that it 17 is reasonable to recognize that any of the co-inhabitants 18 has the right to permit the inspection in his own right . . 19 . . 20 21

at 171 n.7.

22 We have refined the Matlock rule, holding that a third party

23 has authority to consent to a search of a home when that person

24 (1) has access to the area searched and (2) has either (a) common

25 authority over the area, (b) a substantial interest in the area,

26 or (c) permission to gain access to the area. United States v.

27 Davis,

(2d Cir. 1992); see also United States v.

-11- 1 Gradowski,

(2d Cir. 1974) (per curiam).6

2 Despite the stringency of these rules concerning third-party

3 consent searches, we also ask whether a police officer’s

4 objectively reasonable belief that he has obtained consent, even

5 if in fact he has not, renders a search constitutional. See

6 Illinois v. Rodriguez,

(1990) (holding a search

7 constitutional when “the facts available to the officer[s] . . .

8 [would] warrant a man of reasonable caution in the belief that

9 the consenting party had authority over the premises” (internal

10 quotation marks omitted)); see also Florida v. Jimeno,

248, 249 (1991). That is, even if a third party lacks actual

12 authority to consent to a search of a particular area, he still

13 may have apparent authority to consent to the search. See, e.g.,

14 United States v. Buckner,

(4th Cir. 2007).

15 However, “the Rodriguez apparent authority rule applies [only] to

6 1 Another refinement of Matlock is found in United States v. 2 Groves. See

(7th Cir. 2006) (noting that 3 factors indicative of third party’s authority include “(1) 4 possession of a key to the premises; (2) a person’s admission 5 that she lives at the residence in question; (3) possession of a 6 driver’s license listing the residence as the driver’s legal 7 address; (4) receiving mail and bills at that residence; (5) 8 keeping clothing at the residence; (6) having one’s children 9 reside at that address; (7) keeping personal belongings such as a 10 diary or a pet at that residence; (8) performing household chores 11 at that residence; (9) being on the lease for the premises and/or 12 paying rent; and (10) being allowed into the residence when the 13 owner is not present” (citations omitted)); see also 4 Wayne R. 14 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 15 8.3(a), at 148 n.22 (4th ed. 2004) (“The Matlock formulation is 16 not a model of clarity.”).

-12- 1 mistakes of fact [and] not mistakes of law.” 4 Wayne R. LaFave,

2 Search and Seizure: A Treatise on the Fourth Amendment § 8.3(g),

3 at 175 (4th ed. 2004); see, e.g., United States v. Brown, 961

4

, 1041 (2d Cir. 1992) (per curiam) (“Rodriguez would not

5 validate, however, a search premised upon an erroneous view of

6 the law. For example, an investigator’s erroneous belief that

7 landladies are generally authorized to consent to a search of a

8 tenant’s premises could not provide the authorization necessary

9 for a warrantless search.” (citation omitted)); see also Koch v.

10 Town of Brattleboro,

, 167 & nn.3-4 (2d Cir. 2002).

11 Such, then, was the state of the law when Deputies Andreno

12 and Palmer accompanied Sines into Moore’s study, permitted her to

13 forage in his desk and closet for her belongings, and discovered

14 the drugs. Four years later, however, the Supreme Court decided

15 Georgia v. Randolph,

(2006). In Randolph, the Court

16 held that a search conducted on the basis of one co-tenant’s

17 consent is unreasonable as to a physically present and objecting

18 co-tenant.

. In doing so, however, Randolph

19 emphasized that the reasonableness of a consent search is

20 informed by “widely shared social expectations.”

. For

21 example, “[a] person on the scene who identifies himself, say, as

22 a landlord or a hotel manager calls up no customary understanding

23 of authority to admit guests without the consent of the current

24 occupant.”

; see also

(“When someone comes

-13- 1 to the door of a domestic dwelling with a baby at her hip, . . .

2 she shows that she belongs there, and that fact standing alone is

3 enough to tell a law enforcement officer or any other visitor

4 that if she occupies the place along with others, she probably

5 lives there subject to the assumption tenants usually make about

6 their common authority when they share quarters.”). The Court

7 thus subtly elided the existing distinction between a third

8 party’s actual authority to consent (i.e., Matlock) and his

9 apparent authority to consent (i.e., Rodriguez). Cf.

at 112

10 (noting an instance “in which even a person clearly belonging on

11 premises as an occupant may lack any perceived authority to

12 consent” (emphasis added)).

13 While the ramifications of Randolph for the Davis rule are

14 not clear, we need not strive to discern them. Under either

15 Davis or Randolph, we see no basis to disturb the district

16 court’s conclusion that Sines lacked sufficient actual authority

17 to consent to the Deputies’ search of Moore’s study. First,

18 under Davis, the law in effect at the time of the search, Sines

19 lacked actual authority to consent to the search of Moore’s study

20 because, though she had obtained physical access to the room by

21 the time the Deputies arrived, she did not have control over the

22 premises. Davis reads Matlock to require that one who asserts

23 that a third party has authority to consent to a search of an

24 area satisfy a conjunctive test: the third party must have both

-14- 1 access to and some measure of control (or right to exert control)

2 over the area. See Davis,

; cf. United States

3 v. Whitfield,

(D.C. Cir. 1991)

4 (interpreting Matlock as asking whether a third party has access

5 to and makes “mutual use” of an area). But see United States v.

6 Rith,

(10th Cir. 1999) (“[T]he . . . test is

7 disjunctive: a third party has authority to consent to a search

8 of property if that third party has either (1) mutual use of the

9 property by virtue of joint access, or (2) control for most

10 purposes over it.”).

11 As a preliminary matter, “we note that no case in this

12 circuit has delimited the requisite ‘access’ necessary to satisfy

13 the first prong of the Davis test.” Ehrlich v. Town of

14 Glastonbury,

(2d Cir. 2003). In the instant

15 case, it is arguable whether Sines possessed the requisite access

16 to Moore’s study. On the one hand, by the time the Deputies

17 arrived, she had already cut the locks on the study door and

18 therefore had physical access to the room. On the other hand,

19 Sines’s access was acquired by force, and we stated in Ehrlich

20 that “we have never adopted as the clear law of this circuit

21 [the] view that access must mean physical access and not legal

22 access.”

; see also

(noting our lack of

23 “clear precedential guidance . . . on . . . whether some amount

24 of physical force is permissible under the access prong of

-15- 1 Davis”). Thus, while she had physical access to the study, Sines

2 may have lacked “legal access.” In other cases, we have found

3 the access requirement to be satisfied when the party who

4 consented to the search had a key to the searched area, see

5 United States v. Buettner-Janusch,

(2d Cir.

6 1981), or was the owner of the searched container and could “get

7 into [it] whenever he wanted” despite not having the key, see

8 Davis,

n.3. These were not the circumstances

9 under which Sines acted.

10 Regardless of whether Sines’s forced access to the study was

11 enough to satisfy the first prong of Davis, she lacked authority

12 to consent to the search because she failed to satisfy the second

13 prong: Sines did not have any real measure of control over the

14 study. First, she had no common authority over the area as she

15 and Moore were not married and did not share ownership of the

16 house. See Davis,

(“Cleare’s ownership and actual

17 possession of the trunk in his bedroom, coupled with his ready

18 access to it, indicate that, at the very least, he retained

19 common authority over it.”); see also United States v. Backus,

20

(11th Cir. 2003) (holding that an estranged

21 wife who was a domestic violence victim and co-owner of a home

22 could consent to a search even though her husband had changed the

23 locks); United States v. Duran,

(7th Cir. 1992)

24 (“[A] spouse presumptively has authority to consent to a search

-16- 1 of all areas . . . .”); United States v. Brannan,

,

2 108 (9th Cir. 1990) (affirming a wife’s actual authority to

3 consent to a search of her home, despite the fact that her

4 husband had changed the locks, when she had left the home due to

5 fear of her husband); United States v. Long,

, 661

6 (9th Cir. 1975) (same).

7 Second, Sines did not have a substantial interest in the

8 study, as required by Davis. Her only interest in that room came

9 from her personal belief that some of her belongings were being

10 kept there. Sines’s intuition, standing alone, did not give her

11 a “substantial” interest in the study. While no case in this

12 circuit has yet defined what constitutes a “substantial interest”

13 for purposes of the Davis test, the Supreme Court has stated that

14 [c]ommon authority is . . . not to be implied from the mere 15 property interest a third party has in the property. The 16 authority which justifies the third-party consent does not 17 rest upon the law of property, with its attendant historical 18 and legal refinements, but rests rather on mutual use of the 19 property by persons generally having joint access or control 20 for most purposes, so that it is reasonable to recognize 21 that any of the co-inhabitants has the right to permit the 22 inspection in his own right and that the others have assumed 23 the risk that one of their number might permit the common 24 area to be searched.

25 Matlock,

n.7 (citations omitted). It would be

26 inconsistent with these principles to define “substantial

27 interest” in terms of a property interest alone, particularly in

28 a case in which the third party lacked common authority and joint

29 access, and in which the property interest itself was purely

-17- 1 speculative.7

2 In Davis, the court determined that Cleare, the consenting

3 party, had a substantial interest in the searched container based

4 on the fact that “it was his trunk and he kept personal items of

5 some importance in it.”

. But in addition to

6 Cleare’s property interest in the trunk and in the items

7 contained therein -- and consistent with the spirit of Matlock --

8 the elements of mutual use, joint access, control, and assumption

9 of risk were also present:

10 [Cleare] testified that he owned the footlocker, that he 11 could open it at any time he wished “if [he] had to,” and 12 that he kept various personal items in it, including 13 photographs of present and former girlfriends. Cleare also 14 testified that Content never asked him not to look inside 15 the containers that Content had placed in the footlocker, 16 and that “nothing could have stopped” him from inspecting 17 them. He added that Content never forbade him to show the 18 footlocker or its contents to others. 19 20

(alteration in original) (footnote omitted). While we

21 do not mean to say that all of these factors must be present for

22 the substantial interest requirement to be met, the fact that

23 none of them was present in this case strongly indicates that

24 Sines did not have a substantial interest in Moore’s study.

25 Finally, Sines did not have permission to gain access to the

26 searched area, as Moore expressly forbade her to enter the study.

27 See Davis,

(finding valid consent when the

7 1 There is no evidence that Sines’s personal property was 2 actually being kept in the study; she was unable to find the 3 missing items during her search.

-18- 1 consenting party was never asked not to look inside the searched

2 containers and never forbidden to show them to others); cf.

3 United States v. Zapata-Tamallo,

(2d Cir. 1987)

4 (per curiam) (concluding that a host may consent to a search of

5 his guest’s bag when the guest failed to show that the bag was

6 “‘obviously’ his”); Buettner-Janusch,

(“[T]o

7 perform his laboratory duties, Macris was authorized to enter any

8 part of the laboratory and to open any jars of chemicals found

9 there.”); United States v. Perez,

, 1200-01

10 (S.D.N.Y. 1996) (noting that the defendant never “prohibited his

11 father from examining the contents of the storage bins kept in

12 the closet and the armoire of [his] bedroom”). Having failed to

13 satisfy both parts of the Davis test, Sines was without authority

14 to consent to a search of the study, and the Deputies therefore

15 cannot rely on consent to argue that the search was reasonable.

16 Under Randolph, the constitutional calculus of determining

17 whether the search was unreasonable might be somewhat different.

18 See

(“[T]he reasonableness of a search is in

19 significant part a function of commonly held understanding about

20 the authority that co-inhabitants may exercise in ways that

21 affect each other’s interests.”). But we see no common

22 understanding of social practices, as Randolph uses that concept,

23 that could have led the officers to believe that Sines, who

24 admitted to the officers that she had broken the locks on Moore’s

-19- 1 study and lacked permission to enter it, had authority to consent

2 to a search of the room. Cf.

(“Matlock relied on what

3 was usual and placed no burden on the police to eliminate the

4 possibility of atypical arrangements, in the absence of reason to

5 doubt that the regular scheme was in place.” (emphasis added)).

6 A study is commonly thought to be a private place. See

7 Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U.

8 Chi. L. Rev. 47, 62 (1974) (“[W]ithout special information one

9 [might] suppose that husband and wife have independent authority

10 to admit persons to the living room and the kitchen, and probably

11 to the bathroom and bedroom; neither would have authority to

12 admit persons to the other’s study . . . .”). Moore, moreover,

13 locked the door to his study, see United States v. Andrus, 483

, 718 (10th Cir. 2007) (“The inquiry into whether the

15 owner . . . has indicated a subjective expectation of privacy

16 traditionally focuses on whether the subject . . . is physically

17 locked.”); United States v. Kinney,

(4th Cir.

18 1992); United States v. Block,

(4th Cir. 1978),8

19 and refused Sines permission to enter, see Rith,

20 (noting that “an agreement or understanding between the defendant

21 and the third party that the latter must have permission to enter

8 1 The presence of a lock is not dispositive in all cases. It 2 is not certain that, had Moore locked his study only after his 3 altercation with Sines, he could have terminated any preexisting 4 authority on her part to consent to its search. See, e.g., 5 Brannan,

; Long,

.

-20- 1 the defendant’s room” would vitiate consent).

2 As Chief Justice Roberts has explained, at a bare minimum,

3 “a person [who] wants to ensure that his possessions will be

4 subject to a consent search only due to his own consent, . . .

5 [may] place these items in an area over which others do not share

6 access and control, [like] . . . a private room.” Randolph, 547

7 U.S. at 135 (Roberts, C.J., dissenting) (third emphasis added);

8 United States v. Morning,

(9th Cir. 1995) (“A

9 defendant cannot expect sole exclusionary authority unless he . .

10 . has a special and private space within the joint residence.”),

11 abrogated by Randolph,

n.1; Zapata-Tamallo, 833

12 F.2d at 27; United States v. Robinson,

(7th

13 Cir. 1973) (upholding consent when “the defendant [did not] claim

14 exclusive dominion and control over a specific room or portion of

15 a room or particular area of the apartment”). That is precisely

16 what Moore did, and his ability to do so is unaffected by his

17 decision otherwise to share his home with another.

18 With these social expectations operating in the background,

19 and with the specific knowledge that Sines was not permitted to

20 enter the study and had used force to gain access, the Deputies

21 could not validate their warrantless search of Moore’s study on

22 the basis of consent.

23 B. Exigent Circumstances

24 The Deputies also argue that their entry into the study was

-21- 1 justified because they worried that Moore might arrive and wish

2 to (or already be on the premises prepared to) do violence to

3 Sines. We need not tarry long on this argument. The exigency of

4 a situation may insulate a warrantless search from constitutional

5 attack if “law enforcement agents were confronted with an ‘urgent

6 need’ to render aid or take action.” United States v. McDonald,

7

(2d Cir. 1990) (en banc) (quoting Dorman v.

8 United States,

(D.C. Cir. 1970) (en banc)).

9 See generally Brigham City v. Stuart,

, 1947

10 (2006) (“One exigency obviating the requirement of a warrant is

11 the need to assist persons who are seriously injured or

12 threatened with such injury.”). We have explained that the

13 “urgency” of the officers’ need depends on six factors:

14 (1) the gravity or violent nature of the offense with 15 which the suspect is to be charged; (2) whether the 16 suspect “is reasonably believed to be armed”; (3) “a 17 clear showing of probable cause . . . to believe that 18 the suspect committed the crime”; (4) “strong reason to 19 believe that the suspect is in the premises being 20 entered”; (5) “a likelihood that the suspect will 21 escape if not swiftly apprehended”; and (6) the 22 peaceful circumstances of the entry. 23 24 McDonald,

(omission in original).

25 Considering the situation confronted by Deputies Andreno and

26 Palmer in light of these factors (adapted to the circumstances of

27 this case), we do not think that the Deputies had an “urgent

28 need” to enter the study and thus that “exigent circumstances”

29 could justify the search. The Deputies entered Moore’s home

-22- 1 peacefully and Sines told them that Moore was not there. Cf.

2 Tierney v. Davidson,

(2d Cir. 1998) (“It was

3 reasonable for Davidson to believe that someone inside had been

4 injured or was in danger, that both antagonists remained in the

5 house, and that this situation satisfied the exigent

6 circumstances exception.” (emphasis added)). The Deputies stayed

7 with Sines for “quite a while” and at no time did they instruct

8 Sines to hurry, nor did they look elsewhere in the home for

9 Moore.

10 Moreover, if the Deputies had suspected that Moore might be

11 in the house, they would only have been justified in conducting a

12 protective sweep of those spaces “where [he] m[ight] [have]

13 be[en] found.” Maryland v. Buie,

(1990).

14 There is no suggestion that anyone thought Moore might have

15 concealed himself in the erstwhile locked study.

16 C. Conclusion

17 For the foregoing reasons, we think that the Deputies’

18 search of Moore’s study was unreasonable and violated the Fourth

19 Amendment. Sines lacked the authority to consent to the

20 Deputies’ search -- both because she did not have the requisite

21 access to and control over the study and because the particulars

22 of her relationship with Moore were not such that society would

23 expect her to have common authority over the study. Moreover,

24 the Deputies had no urgent need to enter the study, as Moore was

-23- 1 not yet on the premises, and there was no indication that his

2 arrival was imminent.

3 II. Lack of a Clearly Established Right

4 We turn next to the Deputies’ argument that, even if they

5 violated Moore’s constitutional rights, they are entitled to

6 qualified immunity because the law regarding third-party consent

7 to access in a shared dwelling was not clearly established at the

8 time of the search. If, as here, “a constitutional right would

9 have been violated on the facts alleged,” Saucier, 533 U.S. at

10 200, the next inquiry is “whether the right was clearly

11 established,” id. The Supreme Court has clarified that “[t]he

12 relevant, dispositive inquiry in determining whether a right is

13 clearly established is whether it would be clear to a reasonable

14 officer that his conduct was unlawful in the situation he

15 confronted.” Id. at 202; see also Demoret v. Zegarelli,

140, 148-49 (2d Cir. 2006). Normally, it is only the “plainly

17 incompetent or those who knowingly violate the law” -- those who

18 are not worthy of the mantle of office -- who are precluded from

19 claiming the protection of qualified immunity. Malley v. Briggs,

20

(1986).

21 The district court concluded that the law governing consent

22 searches “was clearly established at all times relevant hereto.”

23 Moore,

, at *8. It further held that “reasonable

24 officers could only conclude that [neither consent nor] exigent

-24- 1 circumstances” justified the Deputies’ search of Moore’s study.

2

. We disagree.

3 For constitutional suits like this one to deter misconduct,

4 without also deterring citizens from taking jobs in the public

5 sector, police officers must be able to understand the legal

6 constraints on their conduct. See Back v. Hastings on Hudson

7 Union Free Sch. Dist.,

(2d Cir. 2004) (“The

8 compromise between remedy and immunity that we have chosen turns

9 critically upon notice.”). See generally Hope v. Peltzer, 536

, 739-40 (2002). Thus, it is not enough to say that it

11 was clearly established that a warrantless search of an area is

12 unconstitutional absent probable cause or the voluntary consent

13 of a person with authority to consent to such a search. “To be

14 clearly established, a right must have been recognized in a

15 particularized rather than a general sense.” Sira v. Morton, 380

(2d Cir. 2004). Indeed, “[t]he question is not what

17 a lawyer would learn or intuit from researching case law, but

18 what a reasonable person in the defendant’s position should know

19 about the constitutionality of the conduct.” McCullough v.

20 Wyandanch Union Free Sch. Dist.,

, 278 (2d Cir.

21 1999).

22 The law applying and interpreting Davis was not clearly

23 established at the time of the search. As we noted earlier, this

24 court has never adequately defined the meaning of “access” under

-25- 1 Davis. See Ehrlich,

. Nor have we ever passed on

2 how “substantial” an interest must be to vest a third party with

3 authority to consent to a search over an area in which she has

4 such an interest. And, indeed, it is not even clear what metric

5 we would use to measure substantiality, for it surely cannot

6 depend on the presence or absence of a property right in an area,

7 see Randolph,

. Finally, the difference

8 between “access” and “permission to gain access” is also obscure.

9 For instance, the dictionary definition of “access” given by the

10 district court includes “permission to approach.” See Webster’s

11 Third International Dictionary 11 (1981) (defining access to

12 include “permission, liberty, or ability to enter”).

13 Thus, it was not clear at the time of the search whether the

14 physical access Sines gained by forcibly cutting off the locks to

15 the study satisfied the access requirement of Davis. The fact

16 that Davis distinguishes between access and permission to gain

17 access -- part 2(c) of the test -- could suggest that even though

18 Sines’s access was improperly obtained, it nevertheless

19 constituted access within the meaning of the first prong.

20 However, because we have never decided whether physical force is

21 permissible under the access prong, Ehrlich,

, a

22 reasonable officer could not be sure that Sines did not have the

23 requisite access to the study, see also

(“Since the

24 issue before us is the existence of qualified immunity, we need

-26- 1 not delimit the specific boundaries of the access requirement.”).

2 Moreover, based on the ambiguity in the law, an officer could

3 have reasonably believed that Sines’s suspicion that Moore had

4 hidden her personal effects in his study was sufficient to

5 constitute a substantial interest that could validate her

6 consent. And “[i]f the officer’s mistake as to what the law

7 requires is reasonable, . . . the officer is entitled to the

8 immunity defense.” Saucier, 533 U.S. at 205.

9 In concluding that, for purposes of qualified immunity, the

10 Deputies could have reasonably believed that Sines had authority

11 to consent to the search, we note that this analysis is distinct

12 from that in Part I.A., in which we concluded that, for purposes

13 of determining whether there had been a constitutional violation,

14 common understanding could not have supported a belief that Sines

15 had authority to consent. The latter concerns the question of

16 whether the search itself was unreasonable, in violation of the

17 Fourth Amendment (i.e., the first part of the qualified immunity

18 test), based on common social understanding as clarified in

19 Randolph; the former concerns the question of whether the

20 officers’ belief in the lawfulness of their conduct was

21 unreasonable, thereby precluding a qualified immunity defense

22 (i.e., the second part of the qualified immunity test), based on

23 the state of the existing law, which of course pre-dated

24 Randolph. In Anderson v. Creighton, a warrantless search case,

-27- 1 the Supreme Court highlighted the distinction between these two

2 analyses and noted that it was possible for officers to have

3 conducted an unreasonable search based on a reasonable mistaken

4 belief.

(1987) (suggesting that it is

5 possible “to say that one ‘reasonably’ acted unreasonably”); see

6 also Saucier, 533 U.S. at 202 (“In Anderson, . . . we rejected

7 the argument that there is no distinction between the

8 reasonableness standard for warrantless searches and the

9 qualified immunity inquiry.”).

10 Thus, in this case, we conclude that the Deputies acted

11 unreasonably when they searched the study because “no . . .

12 authority [to consent] could sensibly be suspected.” Randolph,

13 547 U.S. at 112. However, we also conclude that because the law

14 was unclear, the Deputies could reasonably have believed that

15 Sines had access and a substantial interest and therefore had

16 authority to consent to the search. Cf. Saucier, 533 U.S. at 203

17 (“We acknowledged that there was some ‘surface appeal’ to the

18 argument that, because the Fourth Amendment’s guarantee was a

19 right to be free from ‘unreasonable’ searches and seizures, it

20 would be inconsistent to conclude that an officer who acted

21 unreasonably under the constitutional standard nevertheless was

22 entitled to immunity because he ‘reasonably’ acted unreasonably.

23 This superficial similarity, however, could not overcome . . .

24 our history of applying qualified immunity analysis to Fourth

-28- 1 Amendment claims against officers.” (internal quotation marks and

2 citation omitted)).

3 Because we believe that, at the time of the search, the law

4 was not clearly established as to whether Sines had authority to

5 consent to a search of the study, Deputies Andreno and Palmer are

6 entitled to qualified immunity. We therefore do not need to

7 decide whether the law governing searches purportedly justified

8 by the exigency of the circumstances was clearly established at

9 the time the Deputies searched Moore’s study.

10 CONCLUSION

11 For the foregoing reasons, the judgment of the district

12 court is REVERSED. The case is REMANDED to the district court so

13 that it may enter summary judgment in defendants’ favor.

14

-29-