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Harris v. McDonough

United States District Court, D. Massachusetts

May 22, 2015



F. DENNIS SAYLOR, IV, District Judge.

This action arises out of a home entry by police officers and a probation officer to effectuate the arrest of plaintiff Seana Harris. Plaintiffs contend that defendant probation officer Timothy Norris and defendant police officers Michael McDonough, Michael Donovan, Robert Reidy, and Ralph Poland violated their rights under the Fourth Amendment by (1) entering their home without a reasonable belief that Seana Harris (whom they concede was the subject of a valid arrest warrant) was present in the home and (2) exceeding the permissible scope of the search once they had entered the home. Plaintiffs have brought suit under 42 U.S.C. § 1983 for alleged violations of the Fourth Amendment.

The defendant police officers and defendant Norris have filed two separate motions for summary judgment. For the reasons set forth below, both motions will be denied.

I. Background

A. Factual Background

The following facts are undisputed unless otherwise indicated.

In November and December 2010, plaintiff Seana Harris was on probation after having been convicted on multiple charges of larceny. (Norris SMF ¶ 1; Dep. of Seana Harris at 21). She was supervised by Probation Officer Denise Pelchat of the Plymouth District Court Probation Department. (Norris SMF ¶ 1, 4). Her home address at that time was 59 Helena Road in Marshfield, Massachusetts, where she lived with her parents (plaintiffs Michael and Paula Harris) and her two sons. ( Id. ¶ 2).

Among the conditions of Seana's probation were that she should refrain from the use of illicit drugs and that she should submit to drug screenings. ( Id. ¶ 5). On November 19, 2010, Officer Pelchat applied for a warrant for Seana's arrest for a probation violation. ( Id. ¶ 6). Pelchat stated in the application that Seana had failed a drug test, failed to appear for a subsequent drug test, and admitted that she had abused the drug Percocet. ( Id. ). On the basis of that application, two warrants issued for Seana's arrest on November 19. ( Id. ¶ 7).[1] Notice of the warrants was sent to Seana's home on that same day, along with a notice of a "surrender hearing" on Wednesday, December 8, 2010, at which she was ordered to appear. (Officers' SMF ¶¶ 75, 76; Dkt. No. 49, Ex. I). The Harrises received the notice shortly thereafter. (Norris SMF ¶ 8; Seana Harris Dep. at 32).

After she learned that there were warrants out for her arrest, Seana went into hiding. (Norris SMF ¶ 10). She stayed with her friend Stephanie in the neighboring town of Duxbury to avoid arrest and to "detox" prior to her surrender hearing. ( Id. ). During that period, she failed to return at least one telephone call from Officer Pelchat. ( Id. ). She did not inform the Plymouth Probation Department of her whereabouts at any point while she was staying with Stephanie. ( Id. ¶ 11).

According to the testimony of Paula Harris, Marshfield police officers went to the Harris residence at 7:00 a.m. on an unknown date a few weeks prior to December 8. (Paula Harris Dep. at 25-27). She testified that they told her "there was a warrant for Seana, and [that] they wanted-they asked permission to come into my home" and that she responded, "Absolutely." ( Id. at 27). She testified that she "opened the door, let them in, walked them through the entire house, opened closets." ( Id. at 26). The officers did not ask Paula to open any bureau drawers. ( Id. at 26-27).[2]

On the morning of December 8, according to his testimony, Michael Harris left his house and noticed a black car across the street with a man sitting inside of it. ( Id. at 17-18). He testified that he made note of it at the time, as he considered it "odd for a car with a person to be on [his] street because it's very quiet." ( Id. at 18). He further testified that Paula and Seana were not home as of the time he left the house, and that he did not know where Seana was. (Michael Harris Dep. at 15-16). He testified that he was away from his house for "two hours, two and a half hours." ( Id. at 18).

As of December 2010, Timothy Norris was the acting chief probation officer of the Plymouth Probation Department. ( Id. ¶ 12). Norris never served as Seana's probation officer, but he was aware of her status. (Pl. SMF ¶ 3; Norris Dep. at 11-12). He does not specifically recall ever having a conversation with her, although he testified that he might have. (Pl. SMF ¶ 3; Norris Dep. at 71-72).

On December 8, 2010, Norris attempted to arrest Seana Harris on the warrants with the help of the Marshfield police. ( Id. ). He first drove to an area near the Harris residence. (Norris Dep. at 25). At some point in the late morning, he called Lieutenant Michael McDonough of the Marshfield Police Department to request assistance in executing the warrants. (Pl. SMF ¶ 39; Norris Dep. at 25).[3]

Upon receiving the call from Norris, Lt. McDonough verified that there was a warrant for Seana Harris's arrest using the warrant management system. (Pl. SMF ¶ 39). He also looked Harris up in the police department's master file and found a listing for a home telephone number. He then used a "reverse lookup" program on the Internet to search that telephone number; the website he used indicated that the number belonged to a land-line telephone in Marshfield. ( Id. ¶ 40). The website provided no other information about the telephone number, including whether it was associated with Seana Harris or any of the plaintiffs. ( Id. ¶ 41).

Shortly after Norris called, Lt. McDonough drove to the Harris residence in an unmarked vehicle and without a uniform. ( Id. ¶ 43). He met Norris in front of the Harris residence; according to McDonough, the two talked briefly and agreed that they would arrest Seana if she was present in the home. (Norris SMF ¶¶ 13-14; Pl. ¶ 44; McDonough Dep. at 17).[4] McDonough testified that in approaching the house, he saw no cars in the driveway and was not able to see inside the house, but he was able to hear a dog barking from inside the house. (Pl. SMF ¶ 45). He and Norris then knocked on the front door, but received no response. ( Id. ¶ 14; Pl. SMF ¶ 46).[5]

According to Lt. McDonough, Norris then told him that he had called the telephone number McDonough had found for Seana and received no response. (Pl. SMF ¶ 47; McDonough Dep. at 20). McDonough testified that Norris stated that the telephone number he had called was XXX-XXX-XXXX. (Pl. SMF ¶ 47; McDonough Dep. at 21). According to McDonough, the two left the premises after that conversation, and he went back to the police station. (Pl. SMF ¶ 48; McDonough Dep. at 22).

According to Norris, he did not attempt to call any telephone number associated with the Harris residence until after he and Lt. McDonough left the house. (Norris Dep. at 31). He testified that McDonough had asked him whether they had a land-line telephone number that was associated with the Harris house, but that he did not have one when McDonough asked. ( Id. ). He further testified that he first obtained such a telephone number by calling Pelchat on his drive back from the house. ( Id.; Norris SMF ¶ 15).

Norris testified that when he called the number that Pelchat gave him, a female answered and said "hello, " but he hung up without saying anything or otherwise eliciting a further response. ( Id. ¶ 16; Pl. SMF ¶ 14). He testified that he did not recognize the female's voice. (Pl. SMF ¶ 15). He then called Lt. McDonough, about 15 minutes after they had left the house, and told him what had happened. (Norris SMF ¶ 17). He testified that McDonough confirmed on the telephone that the number he had dialed was a land-line telephone number in Marshfield, but that he did not know how McDonough had that information. (Norris Dep. at 34). He testified that the number was XXX-XXX-XXXX. ( Id. at 57).

According to Lt. McDonough, Norris specifically told him on the telephone that he believed the female who had answered his call was Seana. (McDonough Dep. at 22-23). At that point, McDonough asked three other officers-Michael Donovan, Robert Reidy, and Ralph Poland-to accompany him to the Harris residence. (Officers' SMF ¶¶ 40-41; Pl. SMF ¶ 49).

Norris and the four police officers arrived at the Harris residence shortly thereafter. (Norris SMF ¶¶ 17, 19). According to Lt. McDonough, they arrived at some point in the early afternoon. (McDonough Dep. at 54). McDonough testified that there were still no cars in the driveway, and that the officers began walking around the house "to assess the situation." (Pl. SMF ¶¶ 50-51; McDonough Dep. at 32). McDonough noticed two back doors: a sliding door on the deck and a basement door. (Pl. SMF ¶ 52; McDonough Dep. at 33). He testified that he directed Officers Reidy and Poland to move to the back of the house to watch the back doors. (Pl. SMF ¶ 52; McDonough Dep. at 31).

According to Lt. McDonough, he then approached the front door with Officers Donovan and Norris, and he knocked on the door and announced himself. (Officers' SMF ¶ 41; McDonough Dep. at 34). He testified that he knocked for "[a] few minutes." (McDonough Dep. at 34). He also testified that he thought he heard "faint voices" inside the house. (Officers' SMF ¶¶ 40-41; McDonough Dep. at 31, 35). According to McDonough, he then conferred with Officers Donovan and Norris, and they decided to enter the house.[6]

At that point, according to Lt. McDonough's testimony, he went around to the back basement door with Officers Reidy and Donovan; Norris remained at the front door, and Officer Poland remained at the back sliding door. (Pl. SMF ¶ 53; McDonough Dep. 39-40). McDonough testified that Reidy tried the basement door, found it open, "pushed it open a little bit, " and entered. (McDonough Dep. at 38).[7] According to McDonough, Donovan was the next to enter, and then he entered third. (Pl. SMF ¶ 54; McDonough Dep. at 41). Upon their entry, according to McDonough, Reidy, and Poland, Reidy immediately brought the barking dog upstairs and put it in one of the bedrooms. (Pl. SMF ¶ 55; McDonough Dep. 31; Dkt. No. 54, Ex. B, at 4; Dkt. No. 54, Ex. D, at 4).[8] The parties all appear to agree that McDonough then went to the front door and let Norris and Poland inside. (Officers' SMF ¶¶ 11, 41; Norris SMF ¶ 20; Pl. SMF ¶ 54).

According to McDonough, there had been no conversations among the group as to how to split up the search before they entered the house. (Pl. SMF ¶ 57; McDonough Dep. at 45). He testified that he began his search in the basement. At his deposition, he was asked the following questions and gave the following responses:

Q. And so did you move anything? Did you touch anything or did you just look around?
A. Just looked around.
Q. Okay. You didn't touch a thing in the basement?
A. Not that I recall.

(McDonough Dep. at 46). He also testified that the entire search of the basement took "[l]ess than a minute." ( Id. ). He later testified that, after he moved to the main floor of the house, he noticed a television on; according to his testimony, he did not touch it or turn it off. (McDonough Dep. at 47).[9] He later testified that he had no knowledge of any of the officers-including Norris-having opened any drawers in the house, thrown any clothes on the floor, or broken any doors in the house. ( Id. at 73-74).

After Norris entered the residence, he walked through the halls looking for Seana. (Norris Dep. at 41-42). He testified that he had no recollection of seeing or hearing a dog or hearing a television or radio. ( Id. at 40). According to his testimony, he and the other officers had a conversation in the kitchen of the house during which they agreed that Seana was not in the house. ( Id. at 41).

Norris further testified that while he was in the house, he tried calling the number that he had called earlier to verify that it belonged to the house's land-line telephone. ( Id. at 42). At his deposition, he was asked the ...

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