Tametta Bellotte, Individually; E. B.; C. B., by and through their next friend and mother, Tametta Bellotte, Plaintiffs-Appellees V. TRACY L. EDWARDS, P. G. SMITH, ; Keith Sigulinsky, Ranson Police Department, ADAM LETTS, Corporal, Charles Town Police Department, Robert Sell, Corporal, Jefferson County Sheriff's Department, Kevin Boyce, Corporal, Jefferson County Sheriff's Department, James Tennant, Jefferson County Sheriff's Department, Brandon Haynes, Jefferson County Sheriff's Department, Sam Smith, Patrolman, Charles Town Police Department, Anthony Mancine, Patrolman, Charles Town Police Department, Patrick Norris, Patrolman, Ranson Police Department, Defendants-Appellants, and Wal-Mart stores east, L.P., Defendant, v. Samuel Joseph Bellotte, Third Party Defendant.
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1115,
Use of a Special Operations Team On May 31, 2007, Sam Bellotte went to the Wal-Mart located in Winchester, Virginia, to print photographs and make other purchases. Using a memory card he printed his photos at the self-service machine. He went to a clerk to pay for the prints. The clerk was adamant to look at the photographs. Sam Bellotte told them that there was nudity and the clerk would not release them to Sam Bellotte. Sam Bellotte paid for the non-offending photographs then paid for his the other items and left.
Another employee who was to destroy the photos saw one had male genitalia next to what looked like a child's face. Believing that it was child pornography the Fredrick County Police was notified. An officer arrived and placed the photo into a file then verified that Sam Bellotte was the person paying for the photos and contacted the Jefferson County Sheriff's Office. Detective Tracy Edwards reviewed the file and ran a check on Sam Bellotte's address. He discovered that Sam Bellotte and his wife had firearms permits. Detective Edwards obtained a search warrant from a magistrate. The warrant was signed around 2100 that evening.
Detective Edwards contacted a superior officer and obtained approval to have the Jefferson County Sheriff's Office Special Operations Team (SORT) go with her to execute the warrant. The SORT team leaders assessed the situation and believed that they should assist as there were firearms in the home. Three squads were dispatched and, after a briefing and plan in place, went to Sam Bellotte's home around 2215. The officers were dressed in tactical gear to include helmet, vest, and displaying Sig Sauer pistols. They also had entry tools in case they were needed.
The squads opened the unlocked front and back doors then entered without announcement. They executed a dynamic entry in which all entered the home at the same time from different points. After entry they identified themselves repeatedly to the occupants and that they were serving a search warrant. They encountered E. Bellotte, Sam Bellotte's son. He was coming out of his bedroom talking on his cell phone; he was handcuffed by the officers. E. Bellotte alleged that officers put a gun to the back of his head. Officers then found C. Bellotte and she was escorted downstairs un-handcuffed. Other SORT members found Tametta Bellotte in her bedroom. She leapt from the bed and ran screaming to a closet and a gun bag. Officers forced her to the floor and handcuffed her. She was later allowed to dress in the presence of a female officer. The residence was searched and the officers left before midnight.
Sam Bellotte was at his hunting cabin in West Virginia. Tametta Bellotte told Sam Bellotte what had occurred. He went straight to Jefferson County Sheriff's Office and met with Detective Edwards. Bellotte gave a statement regarding the photographs that the person in the photograph was not a child but, a thirty five year old woman from the Philippines. Bellotte did not have any child pornography and was never charged with anything.
Tametta Bellotte filed a 42 U.S.C. 1983 and state charges against Detective Edwards and all officers involved in the entry and search of the home. On December 28, 2009 the district court granted in part and denied in part the motion for summary judgment. The court dismissed the Bellotte's claim that the search warrant was invalid and that part of the execution were unreasonable.
The court ruled that the defendants were not entitled to qualified immunity in regards to fourth amendment claim on the no-knock entry and excessive use of weapons. It allowed the state law claim for emotional distress to continue. The officers appealed the denial of complete qualified immunity and the Bellotte's appealed the partial grant of summary judgment on the search warrant and its execution.
The Fourth Court of Appeals addressed the question of whether the officers were entitled to qualified immunity for the no-knock entry to the Bellotte's home and the use of the SORT team.
The officers contended that the entry was legal for two reasons. It did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).
However the court took into consideration of utilizing the no-knock provision allowed by the courts. Before forcibly entering a residence, police officers "must knock on the door and announce their identity and purpose." Richards v. Wisconsin, 520 U.S. 385, 387, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997). Additionally the court looked at Richards who specifically states "In order to justify a 'no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Richards, 520 U.S. at 394. The court believed the argument to be weak.
The officers countered that knocking in this situation would put them into a precarious safety situation. That Bellotte may act "unpredictably and violently" when he was arrested for child pornography. They believed that the embarrassment of the charge may lead to violence.
The court reasoned that although child pornography was deplorable and illegally obtained there was no indication that it immediately attached violence to the crime. There was no evidence that either of the Bellottes had propensity of violence. They had no criminal record and or a police report of any kind. Her ability to obtain a firearm's permit showed they were responsible adults. The warrant, as applied for and signed for, did not have the approval of the magistrate for a no-knock warrant.
The officers then fell back on an argument that reasoned that a no-knock warrant was valid for the safety of Bellotte as well. Bellotte could be suicidal. The court believed the argument to be speculative at most. The officers' own testimony did not lead to the credibility of this argument. From filed brief brought by the officers stated "Because you don't know how or what the mental status of somebody (is) that you're doing a warrant for child pornography, you don't know how they're going to react." Brief of Appellants at 24.
The court looked at Singleton, 441 F.3d at 293 which stated that ("(E)exigent circumstances--like a threat of physical violence to officers--may allow officers to conduct a no-knock entry") and Gould, 165 F.3d at 274 ("Without question, the failure to knock and announce prior to entering a home can be justified by a fear for officer safety."); Ker, 374 U.S. at 40 Exigent circumstances allow an exception to the knock-and-announce requirement when "the officer's peril would have been increased or the arrest frustrated had he demanded entrance and stated his purpose")
The final argument was that there may have been handguns in home. The belief of child pornography was there and both Bellottes had firearms in the home. The court reasoned that the firearms were legally there and the Bellottes had firearms permits. The court noted the following in the opinion: It should go without saying that carrying a concealed weapon pursuant to a valid concealed carry permit is a lawful act. The officers admitted at oral argument, moreover, that "most people in West Virginia have guns." With that conclusion that most people in West Virginia have guns if the officers are correct, then the knock and announcement requirement would never apply in the search of anyone's home who legally owned a firearm. Officers could not give a plausible reason as to why they thought anyone in the Bellotte household would cause them harm. With few more arguments the court rejected the argument that the no-knock warrant was valid. "We affirm the district court's holding that this no-knock entry violated the Bellotte's clearly established constitutional rights and does not warrant an award of qualified immunity."
The court then addressed the issue excessive force claims by T Bellotte, E Bellotte, and C Bellotte. The court relied on Graham v. Connor. Did the suspects pose threats to the safety of the officers or others? Did they actively resist, or attempt to evade.
In T. Bellotte's case she stated that the officers entered the home in dynamic entry, firearms were drawn. During situation such as these the officers were entering a home to take control of the situation without harm to themselves and occupants. T. Bellotte left her bed and went to the closet to obtain a firearm. Officer reacted by restraining her and escorting her downstairs away from any foreseeable danger. The officers were given qualified immunity.
In C. Bellotte's case the officers entered the room with firearms drawn and she awoke to see at least four men there. However, once officers realized she was of no threat they did not keep the firearms on her and no excessive force was used.
In the case of E. Bellotte however, he felt a firearm in the back of his head. The officers contested his description but, realizing that factual disputes do not contend on appeal, the court did not review those circumstances and allowed his allegations to go through.
Upon the claim on the improper use of the no-knock provision the court ruled in strong language. "When the officers failed to knock and announce their presence under these particular circumstances, they transgressed the boundaries identified by this circuit and violated clearly established federal law. They may not now seek the shelter of immunity for that claim." The court affirmed the denial of qualified immunity on the no-knock entry and E. Bellotte's excessive force claim remanding for proceedings. Denial was decided on the reverse of qualified immunity as to T. Bellotte and C. Bellotte excessive force claims.
Lessons Learned The use of special operations teams must be clearly thought out in situations. Is the team needed? What are the charges? If there are weapons, take the next step to see if the occupants have a criminal record. Is there verifiable evidence that the subject has violent tendencies? Then re-evaluate. Are there children in the home? Do your background information as if it were a separate investigation. We lost this one. So, we all learn.