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Van Sandt v. Brown (8/22/97), 944 P 2d 449
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DALE M. VAN SANDT, )
) Supreme Court No. S-7619
) Superior Court No.
v. ) 3HO-94-375 CI
SIMON BROWN, ) O P I N I O N
Appellee. ) [No. 4873 - August 22, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Homer,
Jonathan H. Link, Judge.
Appearances: Daniel Westerburg, Homer, for
Appellant. Venable Vermont, Jr. and William F. Morse, Assistant
Attorneys General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
This appeal involves a civil rights action arising from
the warrantless nighttime entry by three Alaska State Troopers into
the home and bedroom of Dale Van Sandt. The troopers were
searching for two escaped prisoners from the Spring Creek
Correctional Center in Seward. The limited issue presented on
appeal is whether the superior court correctly granted a directed
verdict in favor of Sergeant Simon Brown on his qualified immunity
defense. We reverse.
Dale Van Sandt worked as a prison guard at the Spring
Creek Correctional Center (Spring Creek). He lived in a mobile
home in Seward, approximately three and a half miles from the
entrance to the prison. Late in the evening of March 15, 1994, two
prisoners escaped from Spring Creek. Both were convicted murderers
and considered extremely dangerous. The prison notified the Alaska
State Trooper post headquarters in Soldotna of the escape.
Brown was the senior trooper on duty that night and the
head of the tracking team assigned to prison escapes. As he was
driving to Seward to assist in the search for the escaped
prisoners, Brown heard a radio transmission reporting that a person
with the physical characteristics of one of the escapees had been
sighted at the Short Stop, a convenience store near Van Sandt's
trailer park. According to the radio report, a member of the
search party had also found footprints in the snow approximately
200-300 yards behind the store. Brown directed his team to search
an area encompassing several neighborhoods near the Short Stop,
including the trailer park in which Van Sandt resided. [Fn. 1]
Officer Dale Eaton was an investigator with the Seward
Police Department and part of the search team. Eaton and several
other officers worked their way through the trailer park in which
Van Sandt resided, alerting the residents and searching for clues.
When Eaton arrived at Van Sandt's trailer, he pounded on the door
with either his flashlight or his fist, and the door popped open
about six inches. [Fn. 2] Eaton then called into the trailer, but
no one responded.
Eaton called the police dispatcher and described what had
occurred at the Van Sandt trailer. Brown heard the description
over the radio and arrived at the trailer shortly thereafter. The
parties dispute whether Eaton told Brown that he had caused the
door to open by pounding on it, or whether he simply told Brown
that he found the door open. [Fn. 3] Receiving no response to
additional shouts of "Alaska State Troopers," Brown made the
decision to enter Van Sandt's trailer with two of his team members.
At the time Brown made the decision to enter, there were
no broken windows or other signs of forced entry. There were no
footprints leading to the Van Sandt trailer nor had any requests
for assistance from the trailer or nearby residents been received.
As Brown conceded at trial: "I had nothing specifically that said
[the escapees were] in . . . Van Sandt's residence." Brown based
his decision on the open door, the report that someone resembling
one of the escapees had been seen in the general vicinity about
thirty minutes earlier, and his suspicion that the escapees might
try to enter a residence in order to secure hostages, winter gear
or keys to a vehicle.
Van Sandt was asleep when the troopers entered his
trailer. He awoke to the word "freeze,"spoken by an officer
wearing camouflage and a ski mask. The officer was pointing a gun
at Van Sandt and shining a flashlight in his face. Van Sandt
testified that he believed that he would be killed. The officers
identified themselves and told Van Sandt that they were looking for
two escaped prisoners from Spring Creek. One of the officers
searched the room and discovered Van Sandt's guard uniform in a
closet. The officers then asked Van Sandt for identification. He
responded that his identification tag was on his uniform shirt in
the closet. After verifying Van Sandt's identity as a correctional
officer, the officers left the trailer.
Van Sandt filed an action for damages against Brown, the
other members of the search team, and the State. Among Van Sandt's
various causes of action was a civil rights claim under 42 U.S.C.
sec. 1983, alleging that Brown had violated Van Sandt's Fourth
Amendment rights under color of state law. By the time of trial,
only this claim remained. At the close of the testimony, Brown
moved for a directed verdict, arguing that he was entitled to
qualified immunity from Van Sandt's claim. The trial court granted
the motion. Van Sandt appeals.
Van Sandt claims that when the officers entered and
searched his residence, they violated his Fourth Amendment rights,
thus providing the basis for sec. 1983 liability. Brown asserted
as a defense the doctrine of qualified immunity. The superior
initially found that whether Eaton informed Brown that he had
caused the door to Van Sandt's trailer to open was a disputed fact
that precluded summary judgment on the issue of qualified immunity.
At the end of the plaintiff's case, Brown moved for a directed
verdict on the issue. The trial court indicated that, in "an
abundance of caution,"it wanted to hear additional testimony
before ruling on the motion. At the close of all of the testimony,
Brown renewed the motion for a directed verdict. After argument by
both parties, the trial court again found that whether Eaton
informed Brown that he had caused the door to open was a disputed
fact. However, the court changed its position on the significance
of this fact, concluding that even if Brown knew that Eaton had
opened the door to the Van Sandt trailer, Brown was entitled to
qualified immunity. [Fn. 4]
We review the superior court's grant of a directed
verdict "to determine whether the evidence, when viewed in the
light most favorable to the non-moving party, is such that
reasonable [persons] could not differ in their judgment." Holiday
Inns of Am., Inc. v. Peck, 520 P.2d 87, 92 (Alaska 1974). Whether
a given set of facts entitles the defendant to qualified immunity
from a sec. 1983 claim is a question of law, Hunter v. Bryant, 502
U.S. 224, 228 (1991), which we review de novo. Elder v. Holloway,
510 U.S. 510, 516 (1994).
Under federal case law, [Fn. 5] a law enforcement officer
is entitled to qualified immunity when performing a search and
seizure if, in light of clearly established law and the information
available to the officer at the time, a reasonable officer could
have believed the search to be lawful. Anderson v. Creighton, 483
U.S. 635, 639 (1987). The law is "clearly established"if the
contours of the right are sufficiently clear that a reasonable
official would understand that his actions violate that right. Id.
at 640. However, a court need not have previously held the very
action in question unlawful for the rule to be "clearly
The Fourth Amendment to the United States Constitution
protects the "right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures." U.S. Const. amend. IV. A warrantless, nonconsensual
entry and search of a private residence is presumptively
unreasonable in the absence of probable cause and exigent
circumstances. Welsh v. Wisconsin, 466 U.S. 740, 748-49 (1984);
accord Murdock v. Stout, 54 F.3d 1437, 1441 (9th Cir. 1995). This
rule was "clearly established law"at the time Brown searched Van
Sandt's trailer. Therefore, Brown is entitled to qualified
immunity only if a reasonable officer could have believed that the
entry and search of Van Sandt's trailer was supported by probable
cause and that exigent circumstances prevented obtaining a warrant.
As the U.S. Supreme Court has stated, "[p]robable cause
is a fluid concept -- turning on the assessment of probabilities in
particular factual contexts -- not readily, or even usefully,
reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S.
213, 232 (1983). Thus, the U.S. Supreme Court has adopted an
approach that looks to the totality of the circumstances known to
the officers at the time they entered the residence. Id. at 231.
Under this approach, "[p]robable cause requires only a fair
probability or substantial chance of criminal activity, not an
actual showing that such activity occurred." Murdock v. Stout, 54
F.3d at 1441 (citing Gates, 462 U.S. at 244).
The facts, viewed in the light most favorable to Van
Sandt, indicate that when Brown decided to enter Van Sandt's
trailer, he possessed the following information suggesting that the
escaped felons might be in the trailer: (1) someone with
characteristics similar to those of one of the escapees had been
spotted at the Short Stop, which was in the vicinity of Van Sandt's
trailer park, (2) footprints had been found behind the Short Stop,
(3) there was no response from within Van Sandt's trailer to the
officers' shouts, and (4) the door to Van Sandt's trailer popped
open when Investigator Eaton pounded on it.
The federal courts require a stronger showing of probable
cause than this to uphold a search under the "exigent
circumstances"exception to the warrant requirement. For example,
in Murdock v. Stout, the court found that officers had probable
cause to enter a house when they had received reports of suspicious
activity at the residence, the resident did not respond and there
were indications that he was or should have been at home, and the
door was open. 54 F.3d at 1441-42. However, the court stated that
it doubted that a report of suspicious activity and an open door,
in the absence of physical evidence of a burglary such as a broken
window or forced lock, "would be sufficient probable cause to
support entry."[Fn. 6] Id. at 1441. In Creighton v. Anderson,
922 F.2d 443 (8th Cir. 1990), the court found probable cause to
uphold a warrantless search of a house where the police had
information "directly linking"the suspect with the house and with
a car owned by the residents of the house, possessed evidence
suggesting that the car had been used in the robbery under
investigation, and had eliminated two other likely hiding places.
In this case, there were no broken windows or other signs
of forced entry, nor were there footprints, reports from neighbors,
or other evidence indicating that the fleeing convicts had
approached or entered the trailer. Moreover, although Brown
received no response to his shouts into the trailer, there were no
indications that "a resident was or should have been at the
residence." Murdock, 54 F.3d at 1442. Indeed, the only fact that
differentiated Van Sandt's trailer from any other trailer in the
area where the resident did not respond to the police was that Van
Sandt's door popped open when Eaton knocked on it. As Brown
conceded at trial, he "had nothing specifically that said [the
escapees were] in . . . Van Sandt's residence."
If the facts are viewed in the light most favorable to
Van Sandt, we conclude that a reasonable officer could not have
believed that probable cause existed to enter and search Van
Sandt's home. [Fn. 7] If Sgt. Brown was aware that the trailer
door was opened by another officer, then he did not have sufficient
information linking the escapees to the trailer to support a
reasonable belief that the warrantless entry was lawful.
Therefore, we hold that the superior court erred in granting
Brown's motion for a directed verdict based on qualified immunity.
Rather, the determination of whether Eaton told Brown that he had
caused the door to open was a disputed material fact that should
have been left to the jury.
Therefore we REVERSE the superior court's grant of a
directed verdict, and REMAND this case for a new trial.
Van Sandt's trailer park has approximately fifteen homes in
it. On the other side of the road from the Short Stop are two
additional subdivisions. Approximately 65 to 100 homes can be
found within a one-mile radius of the Short Stop.
Van Sandt testified that less than half an hour earlier, at
approximately 3:00 a.m., he had gotten out of bed to use the
bathroom, opened the door to check the weather, and closed the door
Eaton initially stated that he told Brown "what he found and
what he had done." Eaton later stated in an affidavit that he did
not disclose to Eaton that he had caused the door to open. In a
subsequent affidavit, he averred that he probably did tell Brown
that the door came open when he knocked on it. At trial, Eaton
testified that he could not remember what he told Brown, but agreed
that he could think of no reason why he would not have told him
what he had done.
We note that qualified immunity is an "immunity from suit
rather than a mere defense to liability." Mitchell v. Forsyth, 472
U.S. 511, 526 (1985). Therefore, immunity questions ordinarily
should be decided by the court long before trial. Id. at 529.
The elements of and defenses to a federal cause of action are
defined by federal law. Howlett v. Rose, 496 U.S. 356, 375-76
(1990). Thus, we look to federal law in determining the scope of
Van Sandt's rights and Brown's qualified immunity with respect to
Van Sandt's sec. 1983 claim.
In this case, Van Sandt conceded at oral argument that if the
door to Van Sandt's trailer had been open when the officers
arrived, Brown would have had probable cause to support entry into
Because of our conclusion, we need not reach the issue of