United States District Court, E.D. Wisconsin
CLAY E. RUSSELL, Plaintiff,
JOSEPH SANTOS and JOSEPH KROENING, Defendants.
Stadtmueller U.S. District Judge.
formerly resided in Holton Terrace, an apartment building for
seniors and disabled adults, operated by the Housing
Authority of the City of Milwaukee (“HACM”).
Defendants are public safety officers employed by HACM.
Plaintiff claims that they entered his apartment against his
will, thereby violating his Fourth Amendment rights.
Defendants have moved for summary judgment. For the reasons
explained below, their motion must be granted.
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides that the “court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d
910, 916 (7th Cir. 2016). A “genuine” dispute of
material fact is created when “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The Court construes all
facts and reasonable inferences in a light most favorable to
the non-movant. Bridge v. New Holland Logansport,
Inc., 815 F.3d 356, 360 (7th Cir. 2016).
assessing the parties' proposed facts, the Court must not
weigh the evidence or determine witness credibility; the
Seventh Circuit instructs that “we leave those tasks to
factfinders.” Berry v. Chi. Transit Auth., 618
F.3d 688, 691 (7th Cir. 2010). Internal inconsistencies in a
witness's testimony “‘create an issue of
credibility as to which part of the testimony should be given
the greatest weight if credited at all.'” Bank
of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d
1162, 1170 (7th Cir. 1996) (quoting Tippens v. Celotex
Corp., 805 F.2d 949, 953 (11th Cir. 1986)). The
non-movant “need not match the movant witness for
witness, nor persuade the court that [its] case is
convincing, [it] need only come forward with appropriate
evidence demonstrating that there is a pending dispute of
material fact.” Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 921 (7th Cir. 1994).
in a light most favorable to Plaintiff, the record evidence
establishes the following material facts. On September 6,
2018, HACM's alarm system reported that a smoke alarm had
gone off in HACM's Merrill Park apartment building.
Defendants were dispatched to check on the alarm, but were
inadvertently directed to Holton Terrace. They arrived at
Plaintiff's apartment and informed him of the smoke alarm
issue. Plaintiff responded that no alarm had sounded and that
everything was fine in his apartment. Plaintiff notes that
there was no fire, smoke, or even a smell of either in his
unit or the hallway outside of it. The area was also calm;
residents were not, for instance, fleeing a fire.
nevertheless pressed Plaintiff for permission to enter the
apartment so that they could check his smoke alarm and look
for damage to the property. Plaintiff resisted. Defendants
told Plaintiff that they had a right to enter his apartment
because the lease he signed required him to cooperate with
HACM public safety officers. Plaintiff's lease provided
that he needed to comply with the HACM Resident Handbook (the
“Handbook”). The Handbook, in turn, told
residents like Plaintiff that they were required to cooperate
with public safety officers and not interfere with them in
the performance of their duties.
to Plaintiff, Defendants also threatened him with a
“violation” to coerce him to let them in. He does
not explain exactly what that means. Defendants assert that
Plaintiff eventually relented and allowed them in, while
Plaintiff insists that he never gave them permission. Either
way, Defendants did enter the unit and briefly looked around.
Finding no evidence of fire and no problems with the smoke
alarm, they soon left.
Fourth Amendment protects the privacy of a person's home
from unreasonable government intrusion. Hawkins v.
Mitchell, 756 F.3d 983, 991-92 (7th Cir. 2014). A search
of a dwelling without a warrant is presumptively
unreasonable. Id. This is precisely what Defendants
did in this case; they entered and searched Plaintiff's
apartment, albeit briefly, without a warrant to do so.
are a number of exceptions to the warrant requirement.
Defendants argue that two such exceptions are present in this
case which would absolve them of Fourth Amendment liability.
First, Defendants assert that Plaintiff voluntarily consented
to the search. United States v. Rahman, 805 F.3d
822, 831 (7th Cir. 2015) (“Because a person may
voluntarily waive his Fourth Amendment rights, no warrant is
required where the defendant consents to a search.”).
Defendants initially rely Plaintiff's agreement to abide
by the policies contained in the Handbook as evidence of his
consent to the search. Plaintiff counters that the Handbook
says nothing about waiving his constitutional rights in their
entirety. Next, Defendants say that Plaintiff also gave them
“grudging” verbal consent to enter the unit that
night. Plaintiff, as noted above, is adamant that he did no
such thing. Defendants further argue that, assuming they had
consent to search, the scope of their search was limited and
Court concludes that Plaintiff has raised triable issues of
fact on the matter of consent. The Handbook is rather vague
with respect to the scope of the cooperation residents must
give to public safety officers. It certainly falls short of
expressly permitting warrantless searches of apartments at
any time. A jury would need to determine the full import of
the Handbook's language. As to verbal consent, this is a
straightforward and ...