United States District Court, N.D. Illinois, Eastern Division
June 24, 2004.
MICHAEL J. GREEN and CHERYL POULSEN, Plaintiffs,
MARLO BUTLER, DAVID CARROLL, MARK SALSBERRY, AMY FREUND, and JEFFREY BRYANT, each in his or her individual capacity, Defendants.
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on Defendants' motion for
summary judgment. For the reasons set forth below, the motion is
Plaintiff Michael Green owns a house in Warrenville, Illinois.
On February 23, 2003, the date of the events that form the basis
of the complaint, Green lived in the house with his girlfriend,
Plaintiff Cheryl Poulsen. A long-time acquaintance of Green's,
Michael Belter, also lived in the Warrenville house. Belter paid
Green $300 a month in rent pursuant to an oral lease. Prior to coming to live with Green and Poulsen, Belter had been
convicted of a criminal sexual offense against a minor. As of
February 2003, he was on parole for this offense, and his
movements were electronically monitored. When Belter moved into
the Warrenville house, Green and Poulsen were aware that Belter
was on parole, although Belter had not apprised them of the full
extent of restrictions to which he was subject. Neither inquired
about specific limitations Belter had pursuant to his parole
When Belter moved into the Warrenville house, he executed a
"Host Site Agreement." The agreement did not indicate that anyone
other than Belter lived at the Warrenville house, and it provided
that the "residence is subject to search at any time by parole
agents or designated Illinois Department of Corrections' staff
and I explicitly consent thereto." The agreement also provides
that a parole agent or designated Illinois Department of
Corrections ("IDOC") staff may enter the residence at any time to
conduct meetings with the parolee to verify compliance with
parole or supervised release conditions. Belter alone signed this
document, even though he informed his then parole officer,
Richard Guise, that he was not the homeowner. It is disputed by
the parties whether Guise ever became aware that Green was the
homeowner and that he lived at the Warrenville house as well. In December 2002, Belter came under the supervision of a
different parole officer, Defendant Marlo Butler. She reviewed
the IDOC computer files for Belter, which stated that Belter
lived alone. On February 23, 2003, Butler went to the Warrenville
house for a random monthly visit. She was accompanied by
Defendant Jeffrey Bryant. The parties dispute whether Bryant was
aware that Belter was not the only resident of the house at that
When Butler and Bryant arrived at the Warrenville house, Belter
came out of the front door and shut it behind him. He refused to
let the two agents enter the house, telling them that the owner
was not home. The agents left without entering the house but
concluded that they needed to return with other agents to assist
them. Butler called Defendant Mark Salsberry to join them.
Salsberry, accompanied by Defendants Amy Freund and David
Carroll, met with Butler and Bryant at a nearby restaurant to
discuss the visit before they went back to the house. Freund and
Salsberry checked their computer files for information on Belter;
they still stated that Belter lived alone.
By the time the agents went back to the Warrenville house,
Green and Poulsen had returned. Green was in the garage; Poulsen
and Belter were in the main part of the house. Bryant stayed
outside; the other four agents entered the house. The parties
dispute the precise details of how the entry took place,
particularly whether the first agent to enter knocked on the door
and stated who they were and why they were there. Once the agents were inside, they identified Belter. Salsberry
and Freund spoke with him in his bedroom on the second floor;
they also handcuffed him and escorted him out to one of the squad
cars. Meanwhile, the other agents spoke with the occupants of the
house, sometimes rather heatedly. Eventually, Green was persuaded
to sign a host site agreement with respect to Belter. At that
point, the agents released Belter and left.
As a result of the events of that day, Green and Poulsen filed
suit against the agents under 42 U.S.C. § 1983, alleging that the
agents violated their constitutional rights by entering the house
as well as conspiring to do so. The parties have completed
discovery, and the agents now move for summary judgment in their
favor on both counts of the complaint.
Summary judgment is appropriate when the record, viewed in the
light most favorable to the nonmoving party, reveals that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c). The moving party bears the initial burden of showing that
no genuine issue of material fact exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548 (1986). The burden
then shifts to the nonmoving party to show through specific
evidence that a triable issue of fact remains on issues on which
the nonmovant bears the burden of proof at trial. Id. The nonmovant may not rest
upon mere allegations in the pleadings or upon conclusory
statements in affidavits; it must go beyond the pleadings and
support its contentions with proper documentary evidence. Id.
The court considers the record as a whole and draws all
reasonable inferences in the light most favorable to the party
opposing the motion. Bay v. Cassens Transport Co.,
212 F.3d 969, 972 (7th Cir. 2000). A genuine issue of material fact exists
when "the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Insolia v. Philip Morris,
Inc., 216 F.3d 596, 599 (7th Cir. 2000); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). With these principles in
mind, we turn the motion before us.
1. Reasonableness of the Search
Under the protections of the Fourth Amendment, most warrantless
searches are presumptively unreasonable. See Schneckloth v.
Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043 (1973).
There are several important exceptions. Two that are significant
to this case are the so-called "special needs" exception and
situations in which authorities obtain consent from a person with
actual or apparent authority over the area to be searched. See
Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3169
(1987) (special needs presented by probation setting); New
Jersey v. T.L.O., 469 U.S. 325, 332 n. 2, 105 S.Ct. 733, 737 n. 2 (1985) (special needs
presented by public school setting); United States v. Matlock,
415 U.S. 164, 170-71, 94 S.Ct. 988, 993 (1974) (consent); Zap v.
United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 1279 (1946)
To determine whether a warrantless search was reasonable under
the Fourth Amendment, a court must compare the degree to which
the individual's privacy is invaded with the degree to which the
search is needed to promote legitimate government interests.
United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587,
591 (2001). The degree to which the privacy is invaded goes hand
in hand with the extent to which the party challenging the
governmental action legitimately expects the privacy to exist.
See Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946,
In this case, it is undisputed that both Green and Poulsen knew
that Belter lived in the house and that he was on parole.
Parolees, as an incident of their status, have a reduced
expectation of privacy. While that does not mean that Green and
Poulsen's privacy interests were as curtailed as Belter's for all
purposes, Green and Poulsen could not reasonably expect, under
these circumstances, that their privacy would remain the same as
it would have been if they were the only occupants of the house.
Even when a cotenant is not a parolee, there is a reduced
expectation of privacy simply by the presence of the other person. United States v. Ladell,
127 F.3d 622, 624 (7th Cir. 1997). When the roommate is a parolee, and
thereby subject to a lesser enjoyment of privacy, the reasonable
expectation of privacy of a cohabitant is correspondingly
diminished by the broader range of government activities
permissible against the parolee who shares the living space.
See U.S. v. Jones, 152 F.3d 680, 686 (7th Cir. 1998);
Wisconsin v. West, 517 N.W.2d 482, 488 (Wis. 1994).
It is also important to note that a legitimate expectation of
privacy is "one which society, and not the individual, is
prepared to recognize as reasonable." People v. Blake,
417 N.E.2d 682, 685 (Ill.App. Ct. 1981). Society is not prepared to
recognize that a parolee living with someone who is not under
restriction need not comply with the terms of his or her parole
simply by virtue of the presence of the nonparolee. Thus, at
least for purposes of common living areas and those under
Belter's control, the legitimate expectation of Green and Poulsen
was coterminous with that of Belter.
Next, we turn to the level of intrusion inflicted by the entry
and search. In this case, the intrusiveness was minimal as to
Green and Poulsen. It is undisputed that the agents confined
their entry to common areas of the house and Belter's bedroom.
They did not enter any other bedrooms, closets, or other space to
which Belter did not have full access. There is no indication
that the agents' entry was prompted by anything but Belter's
actions; Green and Poulsen have not adduced any evidence that the
agents were actually trying to effect a search for evidence against them
and using Belter to circumvent the need for a warrant. The agents
did not take advantage of their presence in the residence and
departed shortly after determining that Belter was telling the
truth that he was not the owner of the house and did not live
alone. The combination of lowered expectation of privacy with the
minimal extent of the search makes the total intrusion on Green
and Poulsen's privacy relatively small.
Turning to the degree to which the search is necessary to serve
the government's legitimate interests, we note that Belter's
status as a parolee is a significant factor in our analysis. The
operation of a parole system by the state of Illinois presents
"special needs beyond normal law enforcement that may justify
departures from the usual warrant and probable-cause
requirements." Griffin, 483 U.S. at 872-73, 107 S.Ct. at 3168.
The nature of the parole arrangement is to expose a known
offender to the public before a sentence has been fully served.
This scenario implicates the public safety in a profound way,
given the available evidence that recidivism is more likely to
occur than first-time offenses and the inherent incentive of
parolees to take active steps to conceal continuing criminal
activity because of the consequences of discovery and the quick
return to prison. See Knights, 534 U.S. at 120, 122 S.Ct. at
592. All of these factors add up to a substantial need for
searches such as the one in this case where a parolee exhibits
suspicious and obstructive behavior, particularly where consent has previously been given for the very activities the
agents are trying to conduct.
Green and Poulsen contend that Belter's consent is not relevant
because his refusal to allow Butler and Bryant to enter the house
operated as a revocation of any consent given. First, we do not
agree that Belter was able to revoke his consent. Under Illinois
law, every person who is subject to parole or mandatory
supervised release must, as a condition thereof, "consent to a
search of his or her person, property, or residence under his or
her control." 730 ILCS 5/3-3-7(10). Belter had been informed of
this condition upon his release in 2001.
In any event, under the circumstances of this case, whether
Belter revoked his consent is not relevant. Belter, a convicted
sex offender whose victim was a minor, had already been relocated
because he was living too close to a school or day care center.
He also had lived alone at that residence. When Butler and Bryant
first encountered him, Belter came outside of the house and
immediately closed the door so as to prevent the agents from
being able to see anything behind him. There is no question that
he did not know who the agents were when they came to the house.
The easily available inference that Belter was engaging in
criminal activity is enough to reduce the standard necessary to
effect a search from probable cause to reasonable suspicion, as well as obviating a warrant. Knights, 534 U.S. at
121, 122 S.Ct. at 592-93.
Green and Poulsen also contend that Salsberry's failure to
knock on the front door before the agents entered and identify
himself controls our decision and mandates denial of summary
judgment. It is disputed whether Salsberry in fact failed to
properly implement the "knock-and-announce" rule, but even
assuming that he did, that does not make the entry and search
per se unreasonable. It is a factor to be considered in the
overall analysis of reasonableness, but it does not outweigh all
other factors. See U.S. v. Sutton, 336 F.3d 550, 552 (7th
Putting all of these components together, we conclude that the
totality of the circumstances in this case unequivocally indicate
that the entry and search of the Warrenville house was
reasonable. Consequently, it did not violate Green and Poulsen's
Fourth Amendment rights, and no cause of action lies under
42 U.S.C. § 1983 either directly or via the theory of conspiracy
alleged in Count II of the complaint.
2. Qualified Immunity
As we have concluded that the search did not violate the Fourth
Amendment, there is no need to consider the agents' defense of
qualified immunity. However, as should be apparent from the
discussion above, the unusual factual circumstances of this case
make the contours of Green and Poulsen's rights in this situation
fuzzy enough that it would not be clear to a reasonable agent in the same
setting that the course of conduct the agents undertook was
unlawful. See Saucier v. Katz, 533 U.S. 194, 202,
121 S.Ct. 2151, 2156 (2001). A reasonable officer with the information that
the agents possessed at the time they entered the house, namely
information indicating that Belter lived alone, that he had
consented to entry and search, and that he had been exhibiting
behavior arguably in violation of the terms of his release, could
have concluded that the search was permitted by the Fourth
Amendment. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 So.
Ct. 2806, 2817 (1985). Thus, the agents would be entitled to
qualified immunity here. See Shea v. Smith, 966 F.2d 127,
130-32 (3d Cir. 1992).
Based on the foregoing analysis, the motion for summary
judgment is granted.
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