Opinion
NO. 01-CA-7269
September 15, 2003
MEMORANDUM AND ORDER
Plaintiff Michael Breslin brings this action against defendant David Knorr ("Knorr") alleging a deprivation of his federal civil rights under 42 U.S.C. § 1983 (Count I) and against Knorr and others alleging a conspiracy to interfere with his civil rights under Pennsylvania law (Count II). Presently before the court is Knorr's motion for summary judgment as to Counts I and II pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant Knorr's motion will granted as to both counts.
BACKGROUND
Breslin alleges a conspiracy among certain union officers, certain union members and a state parole officer to violate his federal civil rights. Plaintiff, a union member and state and federal parolee, asserts that Knorr, as his state parole officer, and others plotted to revoke his parole after he refused to support an opposition candidate during a battle for control of a local union.
There are certain preliminary facts, not mentioned by plaintiff in the amended complaint, but which nevertheless are undisputed and relevant to the determination of the pending motion for summary judgment. Knorr, and presumably plaintiff, knew that plaintiff s state court conviction was for aggravated assault. Def. Knorr's Mot. for Summ. J., Exh. 2, at 1 ( Pa. Commw. Ct. Opinion). In addition, both Knorr and plaintiff knew that a condition of plaintiff s parole was that he "refrain from any assaultive behavior." Def. Knorr's Mot. for Summ. J., Exh. 4 (depo. of Knorr), Knorr Exh.l, at 1 (form entitled "Conditions Governing Parole/Reparole"); see also Def. Knorr's Mot. for Summ. J., Exh. 1, at 6 (depo. of Michael Breslin); Def. Knorr's Mot. for Summ. J., Exh. 4, at 23 (depo. of David Knorr). The "Conditions Governing Parole/Reparole" form contained other conditions, including that plaintiff "not leave the district [of Philadelphia] without prior written permission of the parole supervision staff' and that plaintiff "refrain from owning or possessing any firearms or other weapons." Def. Knorr's Mot. for Summ. J., Exh. 4 (depo. of Knorr), Knorr Exh.l, at 1 (form entitled "Conditions Governing Parole/Reparole"). Furthermore, in consideration of being granted the privilege of parole, plaintiff "expressly consent[ed] to the search of [his] person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole." Id. "Any items, in the possession of which constitutes a violation of parole/reparole shall be subject to seizure, and may be used as evidence in the parole revocation process." Id.
Plaintiff opposes consideration of his conviction on the ground that "the specifics of plaintiff's prior state criminal record are not material to the allegations of the Amended Complaint." Pl's Opp. to Def. Knorr's Stmt. of Mat. Facts, at ¶ 1. In addition, he argues the conviction is inadmissible pursuant to Rule 609(b) of the Federal Rules of Evidence's opposition. Pl's Opp. to Def. Knorr's Stmt. of Mat. Facts, at ¶ 1. Neither ground is persuasive. First, plaintiff's assertion that the details of his prior conviction are not material is clearly incorrect as Knorr's personal knowledge of plaintiff s past criminal record is crucial to the determination of two items: (1) whether Knorr violated plaintiff's Fourth Amendment rights when he arrested plaintiff and searched plaintiff's car and home; and (2) whether Knorr is entitled to qualified immunity for those actions. Knorr's knowledge of plaintiff s prior conviction for aggravated assault is a specific fact which, when combined with other specific facts, may give Knorr reasonable suspicion to believe that plaintiff violated a condition of his parole or reasonable suspicion to believe that evidence of a parole violation would be found in plaintiff's car or home. See infra note 8 (describing legal standards for determining whether a parole officer violated a parolee's Fourth Amendment rights). Knorr's knowledge of plaintiff s past criminal record could alter the court's decision as to whether Knorr had reasonable suspicion to believe that plaintiff violated a condition of his parole or that evidence of a parole violation would be found in plaintiff's car or home. Accordingly, the court concludes that this fact is material to the disposition of this motion. Ideal Dairy Farms, Inc. v. John Lebatt, LTD., 90 F.3d 737, 743 (3d Cir. 1996) (citation omitted) (stating that facts that could alter the outcome are "material"). Plaintiff's reliance on Rule 609(b) is also misplaced. Knorr does not offer evidence of plaintiff s state court conviction for impeachment purposes but rather to show his own state of mind at the time he arrested plaintiff and searched plaintiff's car and home. Rule 609 is limited by its terms to impeaching evidence. Plaintiff's last contention is that the specifics of his conviction should be excluded because Knorr failed to properly cite to the evidentiary record. While the court agrees with plaintiff that Knorr offered an absent citation, there is mention in the Commonwealth Court of Pennsylvania opinion of plaintiff's state court conviction. Doc. 104, Exh. 2, at 1. Plaintiff does not contend that the Pennsylvania court incorrectly described his conviction. Moreover, as that opinion is a matter of judicial record, the court may safely cite to it in support of the facts underlying plaintiff's state court conviction. FED. R. EVID. 803(8).
In addition to the preliminary facts, the undisputed facts of record are set forth below; where a fact is in dispute, the court will recite the plaintiff's version. Sometime before February 28, 1999, several individuals allegedly agreed to a scheme in which John Morris ("Morris"), the duly elected leader of Local Union 115 of the International Brotherhood of Teamsters ("Local 115"), would be ousted from certain union leadership positions. Amend. Compl. At ¶ 19. In order to accomplish this goal, these individuals struck a deal with James P. Hoffa ("Hoffa"), the president of the International Brotherhood of Teamsters ("IBT"). Under the arrangement, if Hoffa imposed an emergency trusteeship on Local 115, and thus enabled local union members and officers to oust Morris from his leadership positions, then Hoffa would be allowed to fill vacancies on the Philadelphia Regional Port Authority, the IBT Joint Council 53, and the IBT Pennsylvania Council with "his people." Id. at ¶ 19.
Plaintiff, who had joined Local 115 as a condition of his parole, was informed of this arrangement on February 28, 1999. Id. at ¶ 19. He was asked for his support, but declined to provide it. Id. at ¶¶ 19, 20. Plaintiff's refusal to offer his support, however, did not thwart the plan. On November 15, 1999, Hoffa, as promised, imposed an emergency trusteeship on Local 115, effectively ousting Morris from his union positions. Id. at ¶ 21.
One week after the change in leadership, on November 22, 1999, union officers Sean Heim ("Heim"), Charles Argeros ("Argeros"), Paul Vanderwoude ("Vanderwoude") and Leo Reilly ("Reilly") went to Huff Paper Co., where plaintiff worked, and informed the present Local 115 members who supported Morris that if they did not cooperate with the new IBT leadership they would "not get any representation whatsoever." Id. at ¶ 22. Two days later, on November 24, 1999, plaintiff and six other Local 115 members filed a grievance at the Local 115 Union Hall based on the above conduct. Id. at ¶ 23.
On December 1, 1999, Breslin and two other Local 115 union members went to the Local 115 Union Hall to ask what was being done about the grievance they had filed on November 24, 1999. Id. at ¶ 24. They were told by Smith that their grievance was being swept under the rug. Id. at ¶ 24.
Later that same month, December 1999, the Honorable John R. Padova of this court granted a preliminary injunction sought by Morris with reference to the emergency trusteeship, which led to the holding of trusteeship hearings by the IBT from January through early March 2000. Id. at ¶¶ 24, 26. These hearings were held in order to meet the IBT's requirements for imposing an emergency trusteeship. Id. at ¶ 26. During the pendency of these hearings, plaintiff and other Local 115 members, believing the trusteeship was imposed for inappropriate reasons and that the IBT hearings were "a kangaroo court," picketed outside the Local 115 Union Hall. Id. At ¶ 27.
On March 13, 2000, in response to the preceding events, plaintiff filed charges with the National Labor Relations Board ("NLRB") against Local 115 and the IBT. Id. At ¶ 29. The NLRB then scheduled a meeting with plaintiff for May 5, 2000. Id. The purpose of the meeting was for plaintiff to provide testimony and sign an affidavit in support of the charges. Id.
On May 3, 2000, plaintiff attended his regularly scheduled meeting with his federal probation officer, Magdelyn Baez ("Baez"). Id. at ¶ 31. At the meeting, Baez informed plaintiff that Norton Brainard ("Brainard"), the attorney for Local 115, sent her a videotape of him on the picket line and that Brainard claimed that this behavior was a violation of plaintiff s federal supervised release. Id. Although Baez told plaintiff that she did not believe that plaintiff had violated the terms of his federal supervised release by picketing, she did caution him to be careful about what he said and did on the picket line. Id. She also indicated to plaintiff that Brainard and Gerald McNamara ("McNamara"), an officer in Local 115, had been seeking his arrest for the past six months. Id.
Also on May 3, 2000, Knorr received a phone call from Brainard, an attorney for the union trusteeship. Pl's Opp. to Def. Knorr's Stmt. of Mat. Facts, at ¶ 10 (plaintiff's acceptance of Knorr's version of facts). While the content of the conversation is in dispute, both sides agree that whatever was said caused Knorr to come to the Local 115 Union Hall on the following day. Id. At ¶ 15 (plaintiff's acceptance of Knorr's version of facts).
There is a factual dispute as to the content of the conversation.
On May 4, 2000, Knorr came to the Local 115 Union Hall. He observed Breslin on the picket line and while it is undisputed that Breslin was engaged in the picket line on that day. Id. at ¶ 16 (plaintiff's acceptance of Knorr's version of facts), any characterization of Breslin's activities, either as threatening or assaultive or innocuous, is in dispute. Knorr then went into the union hall where he met with Brainard and Keyser as well as other members of the union trusteeship leadership group. Amend. Compl. at § 32. While there, Knorr viewed a videotape of Breslin and others on the picket/demonstration line. Id. He then told Brainard and McNamara to prepare affidavits describing their complaints against Breslin. Id.
Later that afternoon, Knorr received and reviewed the affidavits of Brainard and McNamara. Def. Knorr's Mot. for Summ. J., Exh. 4, at 74 (depo. of David Knorr); Def's Knorr's Stmt. of Mat. Facts, at ¶ 22 (stating that Knorr received via fax the written affidavits of Brainard and McNamara); Pl's Opp. to Def. Knorr's Stmt. of Mat. Facts, at ¶ 22 (disputing when Knorr received McNamara's affidavit but stating that Knorr did have possession of the affidavit when he left the union hall); Pl's Memo, in Opp. to Def. Knorr's Mot. for Summ. J., at 6 (stating that Knorr "received affidavits prepared by Brainard and signed by Brainard and McNamara)." Brainard's affidavit contained the following statements made by plaintiff: (1) "I know where your daughter Jenny goes to school."; (2) "How is she doing at Bloomsburg?"; (3) "Do you think the only thing she is doing is studying there?"; (4) "I am going to enroll at Bloomsburg College."; (5) "Oh Jenny, Bloomsburg College."; (6) "I know where you go to church and I am going to come up there and visit you."; and (7) "I have been watching you and your fat wife, when you came into the office last Sunday." Def. Knorr's Mot. for Summ. J., Exh. 4 (depo. of Knorr), Knorr Exh. 4, at 1 (affidavit of Norton Brainard).
It is undisputed that Knorr received the affidavits. While plaintiff contests the timing of the preparation and delivery of one of the affidavits, Pl's Opp. to Def. Knorr's Stmt. of Mat. Facts, at ¶ 22 (asserting that Brainard prepared McNamara's affidavit while Knorr waited and that Knorr took the affidavit with him when he left the union hall), such a dispute is not material to the resolution of whether the contents of the affidavits provided Knorr with reasonable suspicion to believe that plaintiff had violated a condition of his parole.
Gerald McNamara's affidavit also contained examples of the statements that plaintiff made to him, including the following: (1) "How's [your daughter] doing?"; (2) "I had [your daughter] when she was good."; (3) "I know where you live and I will be down there to visit you."; and (4) "I will be coming to your house and telling your neighbors that you are a child molester." Def. Knorr's Mot. for Summ. J., Exh. 4 (depo. of Knorr), Knorr Exh. 5, at 1 (affidavit of Gerald McNamara).
Moreover, plaintiff admits making several of the statements attributed to him by Brainard and McNamara. He admits saying to Brainard: "I know where you go to church and I am going to come up there and visit you." Def. Knorr's Mot. for Summ. J., Exh. 1, at 21 (depo. of Michael Breslin). He also admits telling Brainard: "I hope [your daughter] doesn't become a lying scumbag lawyer like you." Def. Knorr's Mot. for Summ. J., Exh. 1, at 11. (depo. of Michael Breslin). Plaintiff admits saying to McNamara: "How's [your daughter] doing?" and "I had [your daughter] when she was good." Def. Knorr's Mot. for Summ. J., Exh. 1, at 20-21 (depo. of Michael Breslin).
Later that same day, May 4, 2000, Knorr left a citation at plaintiff's home directing him to appear at Knorr's office on the following day, May 5, 2000, which also happened to be the day that plaintiff was scheduled to provide testimony at the NLRB meeting. Amend. Compl. at ¶ 32.
When plaintiff arrived at Knorr's office on May 5, 2000, he was arrested and put in a holding cell. Id. At ¶ 33. Approximately ten minutes after plaintiff was placed in the holding cell, Knorr arrived and said: "You don't have a clue why I'm arresting you. . . . *** Because you are a f______ goon and thug for Johnny Morris and you're a — is going to jail." Id. at ¶ 34; Def. Knorr's Answer to Pl's Amend. Compl. at ¶ 34. While plaintiff was in the holding cell, Knorr searched plaintiff's car. Id. at ¶ 35. During that search, three utility knives and a cell phone were found. Id. At 2:00 p.m., Knorr and four parole officers took plaintiff to his home where they conducted a search of his house. Id. at ¶ 36. Nothing was found during the search of plaintiff's home. Id. Plaintiff was then sent to Graterford Prison, where he remained for one week while Knorr prepared the parole violation charges against him. Id. at ¶ 37.
Plaintiff was subsequently charged with four violations of his state parole. Id. More specifically, he was charged with violation of the following conditions: (1) leaving the district of Philadelphia without the prior written permission of the parole supervision staff (Condition 1); (2) owning or possessing any firearms or other weapons (Condition 5B); (3) engaging in assaultive behavior (Condition 5C); and (4)possessing a cellphone (Condition 7). Def. Knorr's Mot. for Summ. J., Exh. 3 (form entitled "Notice of Charges and Hearing") (attached to end of parole revocation hearing transcript).
The term "Condition" refers to the conditions listed on the form entitled Conditions Governing Parole/Reparole. Def. Knorr's Mot. for Summ. J., Exh. 4 (depo. of Knorr), Knorr Exh.l, at 1 (form entitled "Conditions Governing Parole/Reparole").
Upon being informed of the charges, plaintiff requested a full parole panel hearing, which was granted and set for June 6, 2000. Amend. Compl. At ¶ 38; see also Def. Knorr's Mot. for Summ. J., Exh. 3 (transcript of parole revocation hearing). Shortly before the hearing date, an additional count was added to the charge that plaintiff had violated Condition 5C by engaging in assaultive behavior. Def. Knorr's Mot. for Summ. J., Exh. 3 (form entitled "Notice of Charges and Hearing Amended") (attached to end of parole revocation hearing transcript). The count was based on an allegation by William Oswald ("Oswald"), a member of Local 115, that plaintiff had threatened and harassed Oswald at work. Id.; Amend. Compl. at ¶ 38.
At the June 6, 2000 parole hearing, Knorr offered the testimony of Brainard, McNamara and Oswald in support of the charge that plaintiff engaged in assaultive behavior. Id. at ¶ 39. Knorr also offered his own testimony and documentary evidence in support of the other charges against plaintiff. Def. Knorr's Mot. for Summ. J., Exh. 3 (transcript of parole revocation hearing). Plaintiff, who was represented by counsel, had the opportunity to cross-examine Knorr's witnesses and to present his case, which included testifying on his own behalf and calling several witnesses. Def. Knorr's Mot. for Summ. J., Exh. 3 (transcript of parole revocation hearing). After allowing each side to present its case, and upon review of the evidence presented, the Pennsylvania Board of Probation and Parole concluded that plaintiff had violated the conditions of his parole by: (1) leaving the district of Philadelphia without the prior written permission of the parole supervision staff (Condition 1); (2) owning or possessing any firearms or other weapons (Condition 5B); (3) engaging in assaultive behavior (Condition 5C); and (4) possessing a cell phone (Condition 7). Def. Knorr's Mot. for Summ. J., Exh. 2, at 1 (Pa.Commw.Ct. Opinion). The Board revoked plaintiff's parole and recommitted him for one year and twenty-nine days. Id. at 1, 2. Plaintiff then filed a petition for administrative relief from the Board's decision, which the Board denied. Id. at 2. Upon denial, plaintiff filed a petition for review with the Commonwealth Court of Pennsylvania. That court affirmed the Board's decision. Id. at 2, 11.
In his response to plaintiff's amended complaint, Knorr appears to admit that Oswald provided false testimony at the hearing. Amend. Compl. at ¶ 40; Def. Knorr's Answer to Pl's Amend. Compl. at ¶ 40. There is nothing elsewhere in the record, however, to confirm this admission.
As a result of his re-incarceration, plaintiff lost his job with the Huff Paper Co. Amend. Compl. at ¶ 40.
Based on the aforementioned events, on December 31, 2001, plaintiff filed a complaint against Knorr and other defendants. On November 1, 2002, the court, upon Knorr's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, dismissed Knorr's § 1983 claim without prejudice to plaintiff's right to file an amended complaint. Plaintiff filed an amended complaint on November 25, 2002. Plaintiff alleges that Knorr violated his constitutional rights and that Knorr and various other defendants conspired to interfere with his civil rights in violation of Pennsylvania state law. Presently before the court is Knorr's motion for summary judgment pursuant to Rule 56(c).
STANDARD OF REVIEW
Either party to a lawsuit may file a motion for summary judgment, and it will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). `"Facts that could alter the outcome are "material", and disputes are "genuine" if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Ideal Dairy Farms, Inc. v. John Lebatt, LTD., 90 F.3d 737, 743 (3d Cir. 1996) (citation omitted).
While the moving party bears the initial burden of showing that there is no genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), Rule 56(c) "mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.
When a court evaluates a motion for summary judgment, "[t]he evidence of the non-movant is to be believed." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Additionally, "all justifiable inferences are to be drawn in [the non-movant's] favor." Id. Moreover, `"[s]ummary judgment may not be granted . . . if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed.'" Ideal Dairy, 90 F.3d at 744 (citation omitted). At the same time, "an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment." Robertson v. Allied Signal, Inc., 9 14 F.2d 360, 382 n. 12 (3d Cir. 1990). The nonmovant must show more than "[t]he mere existence of a scintilla of evidence" for elements on which he bears the burden of production. Anderson, 477 U.S. at 252. Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).
DISCUSSION
In his motion, Knorr urges the court to grant summary judgment in his favor on both counts raised against him. The court will do so as to both counts. I. 42 U.S.C. § 1983 (Count I)
Section 1983 provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights. In order to prevail under § 1983, a plaintiff must show first, that he was deprived of a federally protected right, and second, that the person who deprived him of the right acted under color of state law. Gomez v. Toledo. 446 U.S. 635, 640 (1980) (citations omitted). Count I of plaintiff s complaint alleges that Knorr deprived him of his Fourth Amendment rights under the United States Constitution in violation of § 1983. Amend. Compl. at ¶¶ 43-48. In response, Knorr argues that plaintiff failed to establish the first element of a § 1983 claim in that plaintiff has not raised a genuine issue of material fact as to whether Knorr violated plaintiff's Fourth Amendment rights either by arresting him or by searching his car and home. Def. Knorr's Mot. for Summ. J., at 6, 7. Assuming plaintiff articulated a violation of his Fourth Amendment rights sufficient to refute a grant of summary judgment in Knorr's favor, Knorr offers an alternative argument in which he asserts that he is entitled to qualified immunity for his actions in arresting and searching plaintiff. Def. Knorr's Mot. for Summ. J., at 9.
42 U.S.C. § 1983, in pertinent part, reads as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
It is undisputed that Knorr was acting under color of state law at all times pertinent to this claim.
Although plaintiff condenses his constitutional claim (in which he alleges that Knorr violated his Fourth Amendment rights by arresting him, searching his car and searching his home, into one count), the court notes that the allegedly unlawful arrest and subsequent searches of plaintiff's home and car occurred at different times and involved different considerations under the Fourth Amendment. Accordingly, the court will review the two allegations separately. If necessary, the court will consider the applicability of the qualified immunity doctrine to the alleged violations.
A. Constitutionality of the Arrest
Plaintiff's allegations with regard to his arrest are insufficient to establish a violation of plaintiff's Fourth Amendment right to be free from unreasonable seizures. To prevail on his claim that his arrest violated his constitutional rights under the Fourth Amendment, plaintiff must show that Knorr lacked reasonable suspicion to believe that plaintiff had violated one of the conditions of his parole. United States v. Baker, 221 F.3d 438, 443-444 (3d Cir. 2000) (citing Griffin v. Wisconsin, 483 U.S. 868, 871-872 (1987) and United States v. Hill, 967 F.2d 902, 910 (3d Cir. 1992)); United States v. McCarty, 82 F.3d 943, 947 (10th Cir. 1996) ("It is clear that a probation officer may search a probationer's home or even arrest a probationer without a warrant and with less than probable cause.") (citing Griffin, 483 U.S. at 877-878). The issue then, as plaintiff points out, "is what constitutes reasonable suspicion and can the court determine, as a matter of law, that Knorr had reasonable suspicion prior to plaintiff's arrest [to conclude that plaintiff was violating or about to violate a condition of his parole." Pl's Memo, in Opp. to Def. Knorr's Mot. for Summ. J., at 10.
The court concludes that reasonable suspicion is the proper standard to apply to cases where a parolee asserts that his arrest violated the Fourth Amendment. It is well established that the Fourth Amendment prohibits a police officer from arresting an ordinary citizen except upon probable cause. Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 169 (1972)). It is also well established that "probationers do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions." Hill, 967 F.2d at 908 (quoting Griffin, 483 U.S. at 874, and paraphrasing Morrissey v. Brewer, 408 U.S. 471, 480 (1972)) (internal quotations omitted) (bracketed text in original). Based on the diminished expectation of privacy inherent in the condition of parole, United States v. Knights, 534 U.S. 112, 121 (2001) (relying on Griffin, 483 U.S. at 874 and Morrissey, 408 U.S. at 480), courts have held that reasonable suspicion is the proper standard to apply in determining whether a search of a parolee's real or personal property complied with the dictates of the Fourth Amendment. Baker, 221 F.3d at 444 (citing Hill, 967 F.2d at 909); see also Latta v. C. J. Fitzharris et al, 521 F.2d 246, 250 (9th Cir. 1975) (holding that parole officer's decision to search parolee should be "based on specific facts, though they may be less than sufficient to sustain a finding of probable cause"); Hill, 967 F.2d at 910-911 (adopting reasoning from Latta and applying to facts of case before it to conclude that search was reasonable under Fourth Amendment). The principles governing application of the Fourth Amendment to a claim by a parolee that he was unlawfully searched, i.e., that a parolee is entitled to less liberty than a law-abiding citizen and thus that a parolee has a diminished expectation of privacy, are also relevant in the arrest context. Accordingly, it seems proper to conclude that reasonable suspicion is the proper standard to apply in determining whether or not an arrest of a parolee complied with or violated the Fourth Amendment. While the court is convinced that the law supports this conclusion, it also notes that the there is agreement among the parties that reasonable suspicion is the appropriate standard to apply in determining whether Knorr's arrest of plaintiff violated the Fourth Amendment. See Def. Knorr's Mot. for Summ. J., at 6 (applying reasonable suspicion standard to determination of whether Knorr violated plaintiff's constitutional rights by arresting him for violating a condition of parole); Pl's Memo, in Opp. to Def. Knorr's Mot. for Summ. J., at 10-11 (same). In coming to this conclusion, both parties cite cases involving searches of parolees, and appear to conclude that reasonable suspicion applies when determining whether an arrest of a parolee or probationer is unconstitutional. Def. Knorr's Mot. for Summ. J., at 6; Pl's Memo, in Opp. to Def. Knorr's Mot. for Summ. J., at 10.
Reasonable suspicion requires specific and articulable facts, i.e., something more than an un-particularized suspicion or hunch, in support of a decision to initiate an arrest. Hill, 967 F.2d at 910. According to the preeminent case on reasonable suspicion — Terry v. Ohio —, that level of suspicion requires that the police officer "be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" the intrusion on the individual's privacy. 392 U.S. 1, 21 (1968).
As the court begins its analysis under the Fourth Amendment, two preliminary facts are noteworthy. First, Knorr knew that plaintiff's state court conviction was for aggravated assault. Def. Knorr's Mot. for Summ. J., Exh. 4, at 127-128 (depo. of David Knorr); Def. Knorr's Mot. for Summ. J., Exh. 2, at 1 (Pa.Commw.Ct. Opinion). Second, Knorr knew that a condition of plaintiff's parole was that he not engage in assaultive behavior. Def. Knorr's Mot. for Summ. J., Exh. 1, at 6 (depo. of Michael Breslin); Def. Knorr's Mot. for Summ. J., Exh. 4, at 23 (depo. of David Knorr); Def. Knorr's Mot. for Summ. J., Exh. 4 (depo. of Knorr), Knorr Exh.l, at 1 (entitled "Conditions Governing Parole/Reparole" Form). While the parole conditions form does not define the term "assaultive behavior," several Pennsylvania courts have held that the proper definition of "assaultive behavior" may be gleaned from the dictionary definition of "assault." Moore v. Commonwealth, 505 A.2d 1366, 1367 (Pa. Commw. 1986); see also Dunkleberger v. Commonwealth, 573 A.2d 1173, 1174 (Pa.Commw. 1990) (citing Moore). Most recently, a Pennsylvania court has affirmed that assaultive behavior includes "1) a violent physical or verbal attack; [or] 2) an apparent violent attempt or a willful offer of force or violence to do hurt to another without the actual doing of the hurt threatened." Johnson v. Board of Probation and Parole, 706 A.2d 903, 905 (Pa.Commw. 1998). In addition, the Pennsylvania courts have "held assaultive behavior to include threats of physical harm." Id. at 904-905. Finally, in determining whether or not certain conduct constitutes "assaultive behavior," courts have examined whether the parolee's conduct clearly evoked a reasonable apprehension of bodily harm in an individual. Moore v. Commonwealth, 505 A.2d at 1367; Johnson, 706 A.2d at 905. As it is undisputed that plaintiff did not physically abuse or come into contact with any individual, the question here is whether Knorr had reasonable suspicion to believe that plaintiff had threatened to physically harm certain individuals such that his behavior could be considered assaultive, and thus, a violation of his parole.
There is sufficient undisputed evidence upon which Knorr could reasonably rely to come to that conclusion. With the knowledge that plaintiff's state law conviction was for aggravated assault and that a condition of plaintiff s parole was to refrain from assaultive behavior, Knorr received information from eye witnesses that plaintiff was harassing and threatening certain members of the union trusteeship. It is undisputed that Knorr received a phone call from Norton Brainard, an attorney for the union trusteeship, on May 3, 2000. Pl's Opp. to Def. Knorr's Stmt. of Mat. Facts, at ¶ 10 (plaintiff admits that Knorr received telephone call from Brainard). During the conversation, Brainard told Knorr that "he feared for his safety." Pl's Memo, in Opp. to Def. Knorr's Mot. for Summ. J., at 6; see also Def. Knorr's Mot. for Summ. J., Exh. 4, at 46 (depo. of David Knorr); Def. Knorr's Stmt. of Mat. Facts, at ¶ 13.
While plaintiff later disputes the fact that Brainard told Knorr that he feared for his safety, Pl's Opp. to Def. Knorr's Stmt. of Mat. Facts, at ¶ 13, plaintiff offers no evidentiary support for this conclusion. Plaintiff's mere allegation that a dispute exists, without any supporting evidence in the record, is not sufficient to provide evidence from which a rational person could conclude that plaintiff was correct. Ideal Dairy Farms, Inc. v. John Lebatt, LTD., 90 F.3d 737, 743 (3d Cir. 1996) ("[D]isputes are genuine if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.") (emphasis added) (citation and quotation marks omitted).
On the following day, May 4, 2000, Knorr visited the union hall and observed Breslin on the picket line. Def. Knorr's Mot. for Summ. J., Exh. 4, at 51-52 (depo. of David Knorr); Pl's Memo, in Opp. to Def. Knorr's Mot. for Summ. J., at 6 (stating that Knorr visited the local union hall and observed plaintiff); Pl's Opp. to Def. Knorr's Stmt. of Mat. Facts, at ¶ 16 (admitting that Knorr went to local union hall on May 4, 2000. After observing plaintiff for a while, Knorr went into the union hall where he met with Brainard and Keyser as well as other members of the union trusteeship leadership group. Def. Knorr's Mot. for Summ. J., Exh. 4, at 59-61 (depo. of David Knorr); Amend. Compl. at ¶ 32 (stating that Knorr met with Brainard and Keyser); Def.'s Knorr's Answer to Pl's Amend. Compl. at ¶ 32 (admitting plaintiff's statement). While there, Knorr viewed a videotape of Breslin and others on the picket/demonstration line. Def. Knorr's Mot. for Summ. J., Exh. 4, at 56-60 (depo. of David Knorr); Amend. Compl. at ¶ 32 (stating that Knorr viewed a videotape at the union hall); Def's Knorr's Answer to Pl's Amend. Compl. at ¶ 32 (admitting plaintiff's statement). He then told Brainard and McNamara to prepare affidavits describing their complaints against Breslin. Def. Knorr's Mot. for Summ. J., Exh. 4, at 72 (depo. of David Knorr); Amend. Compl. at ¶ 32 (stating that Knorr told Brainard to prepare affidavits from Brainard and McNamara); Def. Knorr's Answer to Pl's Amend. Compl. at ¶ 32 (admitting plaintiff's statement).
While it is undisputed that Breslin was engaged in the picket line outside the union hall on that day, any characterization of Breslin's activities while Knorr was there, either as threatening or assaultive or innocuous, is in dispute. Compare Def. Knorr's Mot. for Summ. J., Exh. 4, at 52-56 (depo. of David Knorr) (stating that he saw plaintiff leaning in toward the cars entering the lot, yelling at the cars and making hand gestures at the cars) and Def.'s Knorr's Stmt. of Mat. Facts, at ¶ 16 (stating that Knorr observed plaintiff engaging in "threatening activities") with Pl's Opp. to Def. Knorr's Stmt. of Mat. Facts, at ¶ 16 (denying that plaintiff was engaging in threatening activities) and Def. Knorr's Mot. for Summ. J., Exh. 4, at 52-53 (depo. of David Knorr) (Knorr states that he was unable to hear what plaintiff and the other men on the picket were saying).
Later that afternoon, Knorr received and reviewed the affidavits of Brainard and McNamara. Def. Knorr's Mot. for Summ. J., Exh. 4, at 74 (depo. of David Knorr); Def.'s Knorr's Stmt. of Mat. Facts, at ¶ 22 (stating that Knorr received via fax the written affidavits of Brainard and McNamara); Pl's Opp. to Def. Knorr's Stmt. of Mat. Facts, at ¶ 22 (disputing when Knorr received McNamara's affidavit but stating that Knorr did have possession of the affidavit when he left the union hall); Pl's Memo, in Opp. to Def. Knorr's Mot. for Summ. J., at 6 (stating that Knorr "received affidavits prepared by Brainard and signed by Brainard and McNamara)."
While plaintiff seems to contest the timing of the preparation and delivery of one of the affidavits, Pl's Opp. to Def. Knorr's Stmt. of Mat. Facts, at ¶ 22, such a dispute is not material to the resolution of whether the contents of the affidavit provided Knorr with reasonable suspicion to believe that plaintiff had violated a condition of his parole.
Brainard's affidavit contains numerous examples of the types of statements that led him to reasonably fear that he or his family might suffer bodily harm by plaintiff, including the following: (1) "I know where your daughter Jenny goes to school."; (2) "How is she doing at Bloomsburg?"; (3) "Do you think the only thing she is doing is studying there?"; (4) "I am going to enroll at Bloomsburg College."; (5) "Oh Jenny, Bloomsburg College."; (6) "I know where you go to church and I am going to come up there and visit you."; and (7) "I have been watching you and your fat wife, when you came into the office last Sunday." Def. Knorr's Mot. for Summ. J., Exh. 4 (depo. of Knorr), Knorr Exh. 4, at 1 (affidavit of Norton Brainard).
McNamara's affidavit contains additional examples of such statements by plaintiff, including the following: (1) "How's [your daughter] doing?"; (2) "I had [your daughter] when she was good."; (3) "I know where you live and I will be down there to visit you."; and (4) "I will be coming to your house and telling your neighbors that you are a child molester." Def. Knorr's Mot. for Summ. J., Exh. 4 (depo. of Knorr), Knorr Exh. 5, at 1 (affidavit of Gerald McNamara).
Moreover, plaintiff admits making several of the statements attributed to him by Brainard and McNamara. He admits saying to Brainard: "I know where you go to church and I am going to come up there and visit you." Def. Knorr's Mot. for Summ. J., Exh. 1, at 21 (depo. of Michael Breslin). He also admits telling Brainard: "I hope [your daughter] doesn't become a lying scumbag lawyer like you." Def. Knorr's Mot. for Summ. J., Exh. 1, at 11. (depo. of Michael Breslin). Plaintiff admits saying to McNamara: "How's [your daughter] doing?" and "I had [your daughter] when she was good." Def. Knorr's Mot. for Summ. J., Exh. 1, at 20-21 (depo. of Michael Breslin).
Based on the above facts, the court must assess whether the contents of the affidavits, taken in conjunction with Knorr's knowledge that Breslin committed aggravated assault in the past, were sufficient to give him reasonable suspicion that plaintiff had violated the condition of his parole forbidding plaintiff from engaging in assaultive behavior. In deciding whether Knorr had the requisite reasonable suspicion, several of the statements allegedly made by plaintiff are particularly pertinent. The statements aimed at the daughters of the two men indicate that plaintiff threatened or intended to physically harm the daughters in some way. See, e.g., "I know where your daughter Jenny goes to school."; "How is she doing at Bloomsburg?"; "Do you think the only thing she is doing is studying there?"; "I am going to enroll at Bloomsburg College."; "Oh Jenny, Bloomsburg College."; "How's [your daughter] doing?"; "I had [your daughter] when she was good."). In addition, the statements in which plaintiff states that he is going to visit Brainard and McNamara in their homes are also ominous and threatening, in that they create the impression that plaintiff plans to have contact with Brainard and McNamara at some place other than on the picket line. See, e.g., "I know where you go to church and I am going to come up there and visit you."; "I know where you live and I will be down there to visit you."; "I will be coming to your house and telling your neighbors that you are a child molester." Moreover, the statement indicating that plaintiff had been watching at least one of the men and his family was particularly indicative of an individual who was planning some kind of physical attack or assault. See, e.g., "I have been watching you and your fat wife, when you came into the office last Sunday."
Finally, in both affidavits Brainard and McNamara state that they fear for their own safety and the safety of their families. Brainard states:
These comments about my wife and daughter have upset both my wife and myself. We are concerned that Breslin will make good on his threat to go see my daughter at college. These comments create the impression that Breslin is stalking my wife, daughter and myself in our daily activities.
Def. Knorr's Mot. for Summ. J., Exh. 4 (depo. of Knorr), Knorr Exh. 4, at 1 (affidavit of Norton Brainard). McNamara also noted that he feared for the safety of his daughter and wife:
My wife is alone at home during the day and when I have mentioned some of these comments to me, she has told me that she is scared about being left alone. My daughter Christine is a member of the Union and also works at Kurz-Hastings, a shop under Union contract.
Def. Knorr's Mot. for Summ. J., Exh. 4 (depo. of Knorr), Knorr Exh. 5, at 1 (affidavit of Gerald McNamara)
The above statements, viewed by Knorr with the knowledge that plaintiff had been convicted of aggravated assault, were sufficient to provide reasonable suspicion that plaintiff was engaging in assaultive behavior. The statements intimated an attempt to use force or violence, as well as a veiled threat to do harm to certain individuals. Moreover, the statements understandably and clearly evoked a reasonable apprehension of bodily harm on behalf of Brainard and McNamara. The affidavits provided specific and articulable facts upon which Knorr relied in concluding that plaintiff had violated the conditions of his parole by engaging in assaultive behavior. Knorr's conduct, in arresting plaintiff, was not based on un-particularized suspicion or a hunch. Rather, the decision to arrest plaintiff came about as a result of Knorr's personal knowledge of Breslin's past conviction for aggravated assault and Knorr's receipt of two affidavits from eyewitnesses to the events containing specific factual allegations. This was sufficient to provide reasonable suspicion of a violation of one of the conditions of his state parole. Accordingly, the court concludes as a matter of law based on the undisputed facts that plaintiff has failed to show that Knorr violated the Fourth Amendment by arresting him on May 5, 2000. Thus, the court will grant summary judgment in Knorr's favor with regard to plaintiff's § 1983 claim as based on the arrest of plaintiff.
B. Constitutionality of the Searches
To prevail on the claim that the search of his car and home violated his constitutional rights under the Fourth Amendment, plaintiff must show that Knorr lacked reasonable suspicion to believe that evidence of a parole violation would be found in plaintiff's car or home. In United States v. Baker, 221 F.3d 438 (3d Cir. 2000), the Third Circuit held that in order to conduct a search of a parolee in compliance with the Fourth Amendment, a parole officer must have reasonable suspicion to believe that evidence of a parole violation will be found in the place to be searched; reasonable suspicion is required regardless of whether or not the parolee has signed a parole form consenting to warrantless searches of his person and property. Baker, 221 F.3d at 443-444 (relying on a Pennsylvania statute, 61 P.S. § 33 1.27a, and Pennsylvania case law interpreting that statute, Scott v. Pennsylvania Board of Probation and Parole, 698 A.2d 32 (Pa. 1997) and Commonwealth v. Williams, 692 A.2d 1031 (Pa. 1997)). In Baker, the court also noted that its conclusion was in accord with Griffin v. Wisconsin, 483 U.S. 868 (1987). Baker, 221 F.3d at 443-444.
The parties also agree that reasonable suspicion is the appropriate standard to apply in determining whether the searches of plaintiff's car and home comported with the Fourth Amendment. See Def. Knorr's Mot. for Summ. J., at 7-8 (applying reasonable suspicion standard to determination of whether Knorr violated plaintiff's constitutional rights by searching his car and home); Pl's Memo, in Opp. to Def. Knorr's Mot. for Summ. J., at 12-16 (same).
Generally, reasonable suspicion requires specific and articulable facts, i.e., something more than an un-particularized suspicion or hunch. Terry v. Ohio, 392 U.S. 1, 21 (1968) (reasonable suspicion requires that the governmental officer "be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" the intrusion on the individual's privacy). More specifically, reasonable suspicion for purposes of a search of a parolee requires that the searching officer's decision to search be based on specific facts. Hill, 967 F.2d at 910. Moreover, those specific facts must be such as to indicate that evidence of a parole violation will be found in the place to be searched. See e.g., Griffin, 483 U.S. at 871 (upholding as reasonable under the Fourth Amendment a state statute that allowed a warrantless search of a probationer as long as the officer conducting the search had supervisory approval and as long as the officer had `"reasonable grounds' to believe the presence of contraband — including any item that the probationer [could not] possess under the probation conditions" would be found in place to be searched).
Applying the above principles to the instant cases, the court concludes that Knorr had reasonable suspicion sufficient to search plaintiff s car or home. Plaintiff was arrested for violating the condition of his parole which prohibited assaultive behavior. Based on that violation, and Knorr's knowledge that plaintiff's criminal record included a conviction for aggravated assault, he could reasonably suspect that corroborating evidence of plaintiff s assaultive behavior may exist and that he should look for such evidence. Moreover, as there was no indication that plaintiff was a sophisticated criminal, Knorr could reasonably suspect that such evidence would be found in plaintiff's car or home because those would be reasonable and logical places for someone contemplating assault to keep the names, addresses, and phone numbers of potential victims, as well as photographs, maps, directions, brochures, and weapons. Based on these facts, the court concludes that Knorr had reasonable suspicion to believe that further evidence of plaintiff s assaultive behavior would be found in plaintiff's car or home.
It is of note that the parties have not cited and there appears to be no case directly on point as to what constitutes reasonable suspicion when a parole officer is looking for corroborating evidence of a parole violation for which the parolee is already under arrest. Nevertheless, the court finds that comparison to other cases, while not directly on point, supports the conclusion that Knorr had reasonable suspicion sufficient to search plaintiff s car and home. Unlike the situation in Scott, where the parolee had not yet been arrested for a parole violation and where the officer based his search on "mere speculation" that the parolee had violated a condition of parole, Scott, 698 A.2d at 36, Knorr had already arrested plaintiff for violating his parole. Rather than looking for evidence of a new parole violation, Knorr was looking for further evidence in support of the violation for which he had already arrested plaintiff. The Third Circuit's holding in Baker may also be distinguished for this reason. The parole officers in that case were looking for evidence of a new parole violation when they decided to search the trunk of the parolee's car. Baker, 221 F.3d at 444-445. They had all the evidence they needed to convict the parolee on the driving without a license charge but they wanted to find evidence of other parole violations. Baker, 221 F.3d at 444-445. In contrast, Knorr was not searching for evidence of a new parole violation; he was only looking for corroborating evidence of the violation for which he had already arrested plaintiff. Therefore, the court concludes that, unlike the officers in the cases cited by plaintiff, Knorr had reasonable suspicion to believe that evidence of a parole violation would be found in the places he searched.
However, even if the court were to assume that Knorr felled to establish reasonable suspicion, he is nevertheless entitled to qualified immunity for his conduct in searching plaintiff's car and home.
1. Qualified Immunity
Government officials, performing discretionary functions, are entitled to qualified immunity for their actions, if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The analysis is two-pronged. The court must first "assess whether the plaintiff's allegations are sufficient to establish the violation of a constitutional or statutory right at all." Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000). If the plaintiff's allegations meet this threshold, the court "must next determine whether, as a legal matter, the right that the defendant's conduct allegedly violates was a clearly established one, about which a reasonable person would have known." Id.; see also S.G. ex rel. A.G. v. Sayreville Ed. of Educ., 333 F.3d 417, 420 (3d Cir. 2003).
Because the Supreme Court characterizes the issue of qualified immunity as a question of law, Elder v. Holloway, 510 U.S. 510, 511 (1994), the Court has repeatedly encouraged the resolution of immunity questions early in the proceedings. Saucier v. Katz, 533 U.S. 194, 200-201 (2001); Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam); 483 U.S. 635, 646 n. 6(1987). Despite the Court's statement that qualified immunity questions are questions of law, the Third Circuit has noted that there is sometimes significant doubt as to the pure legal character of such questions. The Third Circuit has noted that the Court's imperative to decide qualified immunity issues early is in tension with the reality that factual disputes often need to be resolved before determining whether the defendant's conduct violated a clearly established constitutional right. Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002). The Third Circuit has indicated that resolution of this question may be a fact-intensive inquiry that requires a careful examination of the record. Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir. 1996). Such an examination should include a detailed factual description of the actions of each individual defendant. Id.
The first prong has been met for purposes of this discussion. The Baker court decided on August 7, 2000 that a parole officer must have reasonable suspicion to believe that evidence of a parole violation will be found in the place to be searched even if the parolee has signed a parole form consenting to warrantless searches of his person and property. Baker, 221 F.3d at 443-444. As noted, I am assuming for this purpose that Knorr did not have such reasonable suspicion as to Breslin's car and house, even though I previously found that he did.
Thus, it is the second prong that is at issue here. In analyzing the second prong, a court "may consider not only the currently applicable law, but also the law as it clearly existed at the time an action occurred." Shea v. Smith, 966 F.2d 127, 130 (3d Cir. 1992) (citing Harlow). "If the law at that time was not clearly established, an official could not reasonably be expected to `know' that the law forbade conduct not previously identified as unlawful." Id. "Conversely, if the law was clearly established, the immunity defense fails because a reasonable public official should have known the law governing his conduct." Id. Keeping the above principles in mind, the court will attempt to articulate the law as it clearly existed at the time of the incident (May 5, 2000), with regard to searches of parolees' real and personal property.
Applying the qualified immunity doctrine to the instant case, the court concludes that Knorr is entitled to qualified immunity as it was not clearly established at the time of the search on May 5, 2000 that reasonable suspicion was required even when a parolee signed a form consenting to warrantless searches of person and property. Breslin signed a parole release form in which he expressly agreed to warrantless searches of his property and such searches were an express condition of his parole. Def. Knorr's Mot. for Summ. J., Exh. 4 (depo. of Knorr), Knorr Exh.l, at 1 (form entitled "Conditions Governing Parole/Reparole").
In 1995 the Pennsylvania legislature passed two statutes authorizing state parole officers to conduct warrantless searches of parolees' persons and property if reasonable suspicion exists. See 61 P.S. §§ 33127 a and 331.27 b. The relevant one for present purposes is Section 331. 27 a, entitled "Searches by state parole agents." The provisions pertinent to the instant case include Section 331.27a(d)(2) which states that a property search may be conducted by any agent if there is reasonable suspicion to believe that the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision. In addition, Section 331.27a(d)(3) requires that the prior approval of a supervisor be obtained for a property search unless exigent circumstances exist. Finally, Section 331.27a(d)(6) requires that the existence of reasonable suspicion be determined in accordance with judicial interpretations of constitutional search and seizure law.
Noting the passage of Section 331.27 a, the Pennsylvania Supreme Court, on April 21, 1997 decided a case in which the issue was "whether a parolee's Fourth Amendment rights have been violated by a warrantless search by his parole officer where the parolee has signed a consent form upon release." Commonwealth v. Williams, 692 A.2d 1031, 1036 (Pa. 1997). In reaching its conclusion, the court laid out the following approach:
"[T]he parolee's signing of a parole agreement giving his parole officer permission to conduct a warrantless search does not mean either that the parole officer can conduct a search at any time and for any reason or that the parolee relinquishes his Fourth Amendment right to be free from unreasonable searches. Rather, the parolee's signature acts as acknowledgement [sic] that the parole officer has a right to conduct reasonable searches of his residence listed on the parole agreement without a warrant.Williams, 692 A.2d at 1036. The court then went on to state that "[a] search will be deemed reasonable if the totality of the evidence demonstrates: (1) that the parole officer had a reasonable suspicion that the parolee had committed a parole violation, and (2) that the search was reasonably related to the parole officer's duty." Id.
In Williams, a confidential informant, who the parole officer believed to be reliable, informed the parole officer that the parolee was involved in dealing drugs. Id. at 1037. This information was independently corroborated by the parole agent after a conversation with local police. Id. Based on this information, the officer went to the parolee's home, where parolee lived with his mother, and asked the mother if he could look around. Id. at 1033. The mother initially consented but then revoked her consent when the officer went to search the parolee's bedroom. The officer "informed appellee's mother that he was entitled to conduct the search because he believed that appellee may be engaging in actions which would violate the terms of his parole." Id. The mother did not respond to the officer's statement and he proceeded to search the parolee's bedroom, where he found cocaine and other drug paraphernalia. Id.
Applying the test articulated above, the court found, as to the first element, that the information relating to the violation which the officer had prior to the search was sufficient to provide the officer with reasonable suspicion that the parolee had violated a condition of his parole because dealing drugs was specifically prohibited by his parole release agreement. Id. As to the second element, the court found that the officer "[w]hen conducting the search,. . . was acting reasonably within the scope of his official duties to insure that appellee was not violating his parole." Id. Thus, the court concluded that the parole officer had not violated the parolee's Fourth Amendment rights. Id.1038.
The facts in the instant case would seem to comply with Williams. Knorr clearly had a reasonable suspicion prior to the searches that the parolee had violated a condition of his parole, for which Breslin was arrested. Supra pp. 13-21. Moreover, he was "acting reasonably within the scope of his official duties" when he later searched Breslin's car and home seeking additional evidence of the violation. Thus, the Pennsylvania Supreme Court had not established clearly that Knorr's actions were forbidden, but in fact had decided that actions such as Knorr's were appropriate.
However, the issue as to whether the presence of the consent form always allowed a parole officer to conduct suspicionless searches of parolees was not completely settled. In Pennsylvania Board of Probation Parole v. Scott, 542 U.S. 357, 362 n. 3 (1998), the Court expressly declined to address the question "whether a search of a parolee's residence must be based on reasonable suspicion where the parolee ha[d] consented to searches as a condition of parole."
In Baker, our Court of Appeals considered the issue of "whether the standard Pennsylvania Board of Probation Parole consent to search form, signed by Baker as a condition of his parole, authorized suspicionless searches of his person, property and residence." Baker, 221 F.3d at 440.
The parolee was arrested while leaving the parole office for violating the condition of his parole which required him to refrain from driving. The parole officers then searched the passenger compartment of the borrowed car that Baker had driven to the parole office. They also searched the trunk of the car and discovered what they believed to be drug paraphernalia which then led to a search of Baker's home where they found weapons and drugs. The court concluded on August 8, 2000 that Pennsylvania would construe the consent form to require reasonable suspicion and did not authorize suspicionless searches of the parole's property or residence. Thus, it concluded that the search of the trunk was not based on reasonable suspicion and the consent form did not authorize a suspicionless search thereof. The fruits of the search, the evidence found in the trunk and in the later search of Baker's home, were suppressed.
However, prior to issuing its decision, the Third Circuit found the issue so unclear that on February 18, 2000, just two and one-half months prior to the incident at issue here, it certified to the Pennsylvania Supreme Court "the remaining-and vexing-question whether, under Pennsylvania law, the consent form authorized suspicionless searches." Baker, 221 F.3d at 441. The Pennsylvania Supreme Court did not accept the petition for certification, leaving the Third Circuit to decide the issue, which it did on August 7, 2000, two months after the searches at issue here. The Third Circuit noted that the Pennsylvania Supreme Court had never directly construed the consent form as a matter of Pennsylvania law. Baker, 221 F.3d at 445. It went on to predict that Pennsylvania would construe the form to preserve the reasonable suspicion requirement; however, this was two months after the search of Breslin's car and house.
Based on Williams, Scott and particularly Baker, and this court's own review of the state of the law at the time of the search at issue here, the court finds that the "law at that time was not clearly established." Shea v. Smith, 966 F.2d 127, 130 (3d Cir. 1992) (citing Harlow). If the Third Circuit was so uncertain of the law that it certified the question to the Pennsylvania Supreme Court and Williams seemed to support his search, how could Knorr be expected to know that reasonable suspicion was required for his search of plaintiff s car and home to comply with Pennsylvania law and the Fourth Amendment even when he had the consent form in hand. Knorr "could not reasonably be expected to `know' that the law forbade conduct not previously identified as unlawful." Id. In this case, Knorr could not know that he needed to have reasonable suspicion to believe that evidence of a parole violation would be found in plaintiff's car or home. Because Knorr "could have reasonably believed that his . . . actions were lawful, [he] receives immunity even if in fact the actions were not lawful." Forbes v. Township of Lower Merion, 313 F.3d 144, 148 (3d Cir. 2002). Thus, even assuming Knorr did not have a reasonable suspicion sufficient to justify a search of Breslin's car and house, the court concludes that Knorr is entitled to qualified immunity for his conduct in searching plaintiff's car and home. Accordingly, the court will grant summary judgment in Knorr's favor with regard to plaintiff's § 1983 claim as based on the searches of plaintiff s car and home.
Plaintiff argues that Knorr should be subject to the Third Circuit's decision in United States v. Baker, 221 F.3d 438 (3d Cir. 2000) even though that case was decided on August 7, 2000, two months after the incident forming the basis of plaintiff s § 1983 claim in this case. Pl's Memo, in Opp. to Def. Knorr's Mot. for Summ. J., at 18. The court is not persuaded. Although the court in Baker relied on earlier case law in reaching its conclusion, the court altered and redefined the significance of the earlier cases. As such, I will not apply newly defined legal standards to an event that occurred before those standards were law. In addition, plaintiff's contention that Knorr had knowledge of the law in Baker because he was the parole officer in that case is also unpersuasive; until there was a ruling in the case, which did not occur until August 2000, Knorr was bound to follow existing law. Under the existing law, as examined supra, Knorr could reasonably believe that his conduct was lawful.
II. Conspiracy Under Pennsylvania Law (Count II)
Plaintiff also asserts a conspiracy claim under Pennsylvania law against Knorr and other individuals. Amend. Compl. at ¶¶ 49-54. Pursuant to that claim, plaintiff asserts that Knorr engaged in a conspiracy with other individuals to attempt to silence him because he was going to testify and allegedly cast doubt on the validity of the union trusteeship. In response, Knorr argues he is entitled to sovereign immunity under the Pennsylvania Constitution. Def. Knorr's Mot. for Summ. J., at 11-12. Oddly, plaintiff concedes that Knorr is entitled to sovereign immunity but nevertheless contends that the court should allow the claim to remain against Knorr but that the court should forbid plaintiff from executing a judgment against Knorr in the event he is successful on this claim at trial. Pl's Memo, in Opp. to Def.'s Knorr Mot. for Summ. J., at 20-21. Presumably, he asks the court to do this in the belief that he needs the claim against Knorr in order to pursue this claim against the other defendants.
Pursuant to Article I, § 11 of the Pennsylvania Constitution, "[s]uits maybe brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct." The legislature has directed that sovereign immunity is waived in the following instances: (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; (9) toxoids and vaccines. 42 Pa. C.S.A. § 8522. Defendant and plaintiff agree that Knorr's conduct in the instant matter does not fall into any of the above exceptions. Def. Knorr's Mot. for Summ. J., at 13; Pl's Memo, in Opp. to Def. Knorr's Mot. for Summ. J., at 20. Thus, as a matter of law and as agreed by the parties, sovereign immunity protects Knorr and thus prevents suit against him on this count. Accordingly, summary judgment will granted in Knorr's favor as to plaintiff's state law conspiracy claim.
The grant of summary judgment in Knorr's favor does not, however, prevent plaintiff from bringing this claim against the other defendants named in the count, as plaintiff seems to think. If necessary, he can always call Knorr as a witness at trial when putting on evidence in support of this count.
CONCLUSION
For the reasons set forth above, defendant Knorr's motion for summary judgment will be granted in his favor with regard to plaintiff's § 1983 claim (Count I) and with regard to plaintiff's state law conspiracy claim (Count II). An appropriate order follows.ORDER
And now, this day of September 2003, upon consideration of the plaintiff's amended complaint (Doc. 48); the motion of David Knorr for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Doc. 104); and the plaintiff's response thereto (Doc. 131), it is hereby ORDERED that the motion is GRANTED, and judgment is entered in favor of defendant David Knorr ONLY and against plaintiff as to Counts I and II of plaintiff's amended complaint and David Knorr is dismissed as a party to the action.