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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-7423

LYNETTE KORNEGAY, on her behalf and as guardian ad litem for her two minor children; ANDREA ALEXANDER;
REGINALD KORNEGAY,

Appellants

v.

DEWAYNE COTTINGHAM, Detective, and certain unidentified officers of the Wilmington Police Forc e; ALFRED KACZAROWSKI; JOHN CIRATELLA; SCOTT SOWDEN; LIAM SULLIVAN; WILLIAM BROWNE; BRUCE COFFIEY; M. J. BROWNE; SEAN FINERTY; RICHARD IARDELLA; MARLYN DIETZ; OFFICER THOMAS SPELL; JACK FORTNEY; MICHAEL RODRIQUEZ; RICHARD BROWN; CITY OF WILMINGTON

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE
Civil Action No. 95-cv-00161

Argued: February 14, 1997

Before: COWEN, MCKEE, and JONES,* Circuit Judges

.

(Filed July 23, 1997)

___________________________________________________ ______________ *The Honorable Nathaniel R. Jones, Circuit Judge, U nited States Court of Appeals for the Sixth Circuit, sitting by design ation.Charles Slanina, Esq.

(Argued) Biggs & Battaglia
1800 Mellon Bank Center
P.O. Box 1489 Wilmington, DE 19899

Attorney for Appellants

William J. Rhodunda Jr., Esq. (Argued) City of Wilmington Law Department City/County Building, 8th Floor

800 N. French Street Wilmington, DE 19801

Attorney for Appellees

OPINION OF THE COURT

MCKEE, Circuit Judge

.

Lynette Kornegay filed this action under 42 U.S.C. § 1983 alleging that various Delaware law enforcement offi cers conducted an illegal search of her home in violatio n of the
Fourth and Fourteenth Amendments. The district cour t granted defendants' motion for summary judgment bas ed upon their assertion of qualified immunity. For the reasons that follow, we will reverse in part and remand for further proceedings consistent with this opinion.1

___________________________________________________ ______________

1. Kornegay raises four claims in this appeal: (1) the search warrant was facially defective in failing to state any facts fr om which the informant's reliability could be assessed; (2) detective Cottin gham acted with reckless disregard for the truth in failing to disclose that his confidential informant was unreliable; (3) detective Cottingham acted unreasonably in believing that Shannon Selby could be found at 2 611 N. Locust Street; and (4) the Crisis Management Tactical Team conduct ed an unlawful entry by failing to comply with the knock-and-annou nce requirement.
We will affirm the decision of the district court o n the first three claims
without discussion.

2I.

Kornegay and her minor children moved into a house located at 2611 N. Locust Street, Wilmington, Delaw are in April 1994. The previous tenant, Dorothy Selby, had moved from that address in January 1994. Her nephew, Shan non Selby ("Selby"), occasionally listed his aunt's add ress as his

own.

In April 1994, Selby became a suspect in the April 14, 1994 murder of Montel Morgan. Wilmington police det ective DeWayne Cottingham headed that investigation and, a fter a preliminary investigation into Selby's whereabouts, incorrectly concluded that Selby was living at 2611 N. Locust Street. Acting upon that belief, Cottingham applied
for and obtained a search warrant for that address. The warrant listed Selby and the murder weapon as the subjects of the search even though Selby was not considered the shooter. His alleged involvement in Morgan's murder was telling the actual shooter to shoot Morg an.

On May 5, 1994 at 6:00 a.m., members of the Crisis Management Tactical Team ("CMTT") executed the warr ant which had been labeled "high risk" because Selby wa s wanted for Morgan's murder. The CMTT used a batteri ng ram to break down the front door of 2611 N. Locust Street. Only after the door was broken in did the officers identify themselves by yelling "Police. Search Warrant." The y entered each room with guns drawn yelling "Police. Search Warrant." In an upstairs bedroom, police found Korn egay, a male friend, Andre Alexander, and Kornegay's twen tymonth old daughter in bed. The police ordered them not to move, and Alexander was dragged from the bed and handcuffed for a few minutes. Other officers brough t Kornegay's seven-year old son from the adjacent roo m where he had been sleeping to his mother's room. He was harshly told to "get in to where they are."

At that point, an officer downstairs called out "al l clear", and the CMTT left the house. Kornegay and Alexander were given clothes to change into from their pajamas and brought downstairs. Once downstairs, Kornegay was g iven a copy of the search warrant. Only then did she lea rn that the police were searching for a murder suspect name d

3"Shannon Selby." In all, the CMTT remained in the h ouse

approximately five minutes. During that time, the o fficers
restricted their search to behind furniture and the inside of closets. Only the front door was damaged. Kornegay and her children, however, were understandably frighten ed and upset by the incident.

Kornegay subsequently filed a civil rights action u nder 42
U.S.C. § 1983 on behalf of herself and her children against the officers who executed the search. She alleged t hat the
officers had violated the Fourth and Fourteenth Amendments by relying on a warrant that was faciall y defective and then searching their home in an unreasonable manner. The officers moved for summary judgment arguing that they were protected under the doctrine of qualified immunity. The district court agreed and granted summary judgment. This appeal followed.

We have appellate jurisdiction pursuant to 28 U.S.C

. § 1291 which gives us jurisdiction over "appeals fr om all
final decisions of the district courts of the Unite d States."
28 U.S.C. § 1291.2

II.

Kornegay contends that there are issues of material fact regarding the reasonableness of the officers' condu ct in executing the search warrant and that the district court therefore erred in granting them summary judgment. Our standard of review is plenary.

Thus, `[we] review the district court's summary judgment determination de novo, applying the same standard as the district court. . . . [I]n all case s summary judgment should be granted if, after drawin g

___________________________________________________ ______________

2. In their brief, the appellants cite the collater al order doctrine as the basis for our appellate jurisdiction. However, the authorities they cite for that proposition all involve cases in which summary disposition was denied the government actors. See, e.g., Forsyth v. Kleindienst , 729 F.2d 267, 271 (3d Cir. 1984); Evans v. Dillahunty , 711 F.2d 828, 829-30 (8th Cir. 1983). Here, the district court granted summar y disposition to the officers. Thus, the appellants are appealing afinal order of that court, and, therefore, our jurisdiction derives from 28 U. S.C. § 1291.

4all reasonable inferences from the underlying facts in

the light most favorable to the non-moving party, t he court concludes that there is no genuine issue of
material fact to be resolved at trial and the movin g party is entitled to judgment as a matter of law.

Spain v. Gallegos , 26 F.3d 439, 446 (3d Cir. 1994)(quoting Petruzzi's IGA Supermarkets, Inc. v. Darling-Delawa re Co. , 998 F.2d 1224, 1230 (3d Cir. 1993)).

III.

"Government officials performing discretionary func tions generally are shielded from liability for civil dam ages if their conduct does not violate clearly established . . . constitutional rights of which a reasonable person would
have known." Shea v. Smith , 966 F.2d 127, 130 (3d Cir. 1992).

"[I]t is inevitable that law enforcement officers w ill in some cases reasonably but mistakenly conclude that [their conduct was lawful]." Orsatti v. New Jersey State P olice , 71 F.3d 480, 483 (3d Cir. 1995). Accordingly, we do no t inquire into whether these defendants violated the Fourth and Fourteenth Amendments. Instead, we must determi ne if a reasonable fact finder could conclude that the ir conduct did not violate clearly established law of which a reasonable person would have known. Qualified immunity turns o n the
reasonableness of the officers' belief that their c onduct was legal not its legality per se. "To determine reason ableness, a reviewing court must ask `whether a reasonable pe rson could have believed the defendant's actions to be l awful in light of clearly established law and the informatio n he possessed.' " Parkhurst v. Trapp , 77 F.3d 707, 712 (3d Cir. 1996)(citation omitted); see also Shea , 966 F.2d at 130 ("[A]n official who conducts an illegal search may not be held personally liable if he could have reasonably believed that the search comported with the Fourth Amendment ."). " `Clearly established rights' are those with conto urs sufficiently clear that a reasonable official would understand that what he is doing violates that righ t." Id. Since the instant challenge focuses in large part u pon the officers' failure to knock and announce their prese nce, we

5must determine the extent to which the "knock and

announce" rule was a "clearly established" right wh en they searched Kornegay's home.

A. The "Knock and Announce" Rule

The Fourth Amendment protects "[t]he right of the p eople to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Wilson v. Arkansas , 514 U.S. 927, 115 S. Ct. 1914, 1916 (1995). The "commonlaw requirement that police officers enterin g a dwelling must knock on the door and announce their identity and purpose before attempting forcible ent ry" is incorporated into the Fourth Amendment's guarantees

. Richards v. Wisconsin , ___ U.S. ___, 117 S. Ct. 1416, 1418 (1997).3 This rule has come to be known as the "kno ck-andannounce" requirement and it "strikes the appropria te balance between the legitimate law enforcement conc erns at
issue in the execution of search warrants and the individual privacy interests affected by no-knock e ntries."

Id. at 1421-22.

First, it reduces the likelihood of injury to polic e officers, who might be mistaken, upon an unannounced intrusion into a home, for someone with no right to be there. Second, it seeks to prevent needless damage to private property. Finally, it embodies respect for the individual's right of priv acy, which is to be imposed upon as little as possible i n making an entry to search or arrest.

United States v. Nolan , 718 F.2d 589, 596 (3d Cir.1983)(citations omitted).

In United States v. Gable , 401 F.2d 765 (3d Cir. 1968), police obtained a warrant to search the defendant's house for gambling equipment. They attempted to gain entr y to the house by inserting a crowbar into the door and prying

___________________________________________________ ______________

3. Richards was decided after the search at issue here and thu s the officers who searched Kornegay's home cannot be cha rged with knowledge of it. However, we cite it because the ca se affirms the necessity for a case-by-case inquiry into the reaso nableness of the police
conduct under the law at the time of the search.

6it open without first knocking or announcing their presence

or purpose. As they were forcing the door, the defe ndant voluntarily opened it. We held that the entry was i llegal because police failed to announce their purpose bef ore using the crowbar to pry the door open. That case w as decided nearly thirty years before the search at is sue here.

Even the highest court in the state where the insta nt search was executed had years ago declared a search unreasonable when police failed to comply with the knockand-announce requirement. See Tatman v. Delaware , 320 A.2d 750 (Del. 1974). In Tatman , police obtained a search warrant which they executed at 6:00 a.m. They knock ed on the street door to the multi-family dwelling, waite d a few seconds, and then used sledge hammers to break the door down. Police then went to the second-floor apartmen t described in the warrant and broke into that apartm ent without knocking or announcing their purpose. The c ourt declared "[t]he no-knock search here was unreasonab le and violative of Fourth Amendment requirements. Prior t o the entry of a residence, the police officer is require d by the common law, in executing a warrant, to signify the cause of his coming, and to make a request to open the doors ." Id

. at 750 (citations and internal quotation marks omit ted).

As noted earlier, Richards v. Wisconsin reaffirmed the
common law rule. In Richards , the defendant was convicted of possession of cocaine with intent to distribute based upon evidence that was seized from his hotel room following a "no-knock" entry pursuant to a search w arrant. The Wisconsin Supreme Court affirmed the trial cour t's denial of the defendant's suppression motion reason ing that, given the inherent danger of today's drug cul ture, "police officers are never required to knock and an nounce their presence when executing a search warrant in a felony drug investigation." Richards , 117 S. Ct. at 1418. The U.S. Supreme Court reversed holding that there could be no categorical exception to the rule. "Instead, in eac h case, it is the duty of a court confronted with the question to
determine whether the facts and circumstances of th e particular entry justified dispensing with the knoc k-andannounce requirement." Id. at 1421.

7A "no-knock" entry is justified when "the police [ ] have a

reasonable suspicion that knocking and announcing t heir presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the e ffective investigation of the crime." Id. ; see also Wilson , 115 S. Ct. at 1918-19; United States v. Singleton , 439 F.2d 381, 385- 86 (3d Cir. 1971). Courts have upheld dispensing wi th the knock-and-announce requirement in four situations: (1) the
individual inside was aware of the officers' identi ty and thus announcement would have been a useless gesture ; (2) announcement might lead to the sought individual's escape; (3) announcement might place the officers i n physical peril; and (4) announcement might lead to the
destruction of evidence. See Richards , 117 S. Ct. at 1421;
Wilson , 115 S. Ct. at 1919; Bodine v. Warwick , 72 F.3d 393, 397 (3d Cir. 1995); United States v. Stiver , 9 F.3d 298, 302 (3d Cir. 1993); United States v. Kane , 637 F.2d 974, 978 (3d Cir. 1981).

Here, the magistrate issued an ordinary warrant to
search the residence at 2611 N. Locust Street. Such a warrant "authorize[s] an executing officer to enter the property where the search or seizure was to occur b ut would not confer `no knock' authority unless the wa rrant so
indicated." Bodine , 72 F.3d at 396. Therefore, the officers are shielded by qualified immunity only if they "co uld reasonably have decided that an urgent need existed for such an entry into the premises." United States v. Stewart , 867 F.2d 581, 584 (10th Cir. 1989). "To determine reasonableness, a reviewing court must ask itself ` whether a reasonable person could have believed the defenda nt's actions to be lawful in light of clearly establishe d law and the information he possessed.' The objective facts control a decision on summary judgment, regardless of allegat ions of intent." Parkhurst v. Trapp , 77 F.3d 707, 712 (3d Cir. 1996)(citation omitted). With these principles as o ur guidepost, we examine the actions of the officers h ere.

B. The Officers' Information

Detective Cottingham was assigned to investigate th e April 14, 1994 murder of Montel Morgan, who had bee n shot in the stomach in a high-crime area of Wilming ton

8called "the Bucket." Cottingham learned from one wi tness

that Shannon Selby told another individual at the s cene to shoot Morgan. A second witness confirmed that someo ne other than Selby had shot Morgan but stated only th at Selby was present. This witness did not implicate S elby in the shooting at all. Based upon this information, Cottingham obtained an arrest warrant for Selby cha rging him with first-degree murder, first-degree conspira cy, second-degree conspiracy, and tampering with a witn ess.4 All of the murder-related charges were based on Sel by's alleged encouragement of the shooter. It is undispu ted that Cottingham did not think that Selby had shot Morgan

.

After obtaining the arrest warrant, detective Cotti ngham applied for a warrant to locate Selby. Although Cot tingham initially found three different addresses for Selby among various police and court documents, a preliminary investigation suggested that Selby's correct addres s was 2611 N. Locust Street. Residents in the Bucket conf irmed that Selby lived in the vicinity, but they did not know where. A review of police records disclosed three d ifferent addresses for Selby, one of which, 2611 N. Locust S treet, was in that area. The most recent arrest report lis ting N. Locust Street as Selby's address was from January 1 993. Further investigation disclosed that a new telephon e number had been issued to a "Dorothy Selby" at that address. Cottingham made no further effort to deter mine if that number was still assigned to that address, but he did call the number and ask for "Shannon Selby." He was told that Selby was not there.

On May 4, 1994, detective Cottingham obtained a warrant to search 2611 N. Locust Street for Selby a nd the murder weapon. Cottingham decided to execute the wa rrant at 6:00 a.m. on the following day and requested tha t the Crisis Management Tactical Team ("CMTT") assist wit h the search. The warrant was labeled "high risk" because Selby was wanted in connection with a serious felony, and the weapon involved had not been recovered. The CMTT wa s instructed to consider Selby armed and dangerous.

___________________________________________________ ______________

4. The second witness reported to police that sever al individuals including Selby threatened her after the incident.

9On May 5, 1994 at 6:00 a.m., the CMTT, wearing mask s

and bullet-proof vests, broke down the door at 2611 N. Locust Street. After the door was broken in, the of ficers yelled "Police. Search Warrant." The officers there after entered Kornegay's home and proceeded as set forth above
in Part I.

The district court agreed with the Magistrate Judge 's Report and Recommendation that these "circumstances justified deviation from the knock and announce rul e, as the high risk warrant was for a first degree murder suspect who was a known drug dealer with previous arrests f or felony offenses involving the use of a weapon, and the gun used in the murder had not been recovered." App. at 46. We disagree.

There is nothing in this record to suggest that the officers had information that the murder weapon was in Selby 's possession. He did not fire the fatal shot, he was not even reported to have been armed at the murder scene, an d nothing suggests that the police had information th at the shooter gave Selby the weapon after the shooting. T he mere fact that the shooting occurred and the murder weap on was not recovered does not establish that Selby was in possession of it with such certainty that the offic ers'
conduct can be ruled reasonable as a matter of law. "[O]fficers must have more than a mere hunch or sus picion before an exigency can excuse the necessity for kno cking and announcing their presence. . . . [W]e will clos ely scrutinize officers making a forced entry without f irst adequately announcing their presence and purpose."
Dickerson v. McClellan , 101 F.3d 1151, 1160 (6th Cir. 1996) (citations and internal quotation marks omitted).

Moreover, allegations of Selby's past drug dealing and prior arrests for violent crimes do not suspend the knockand-announce rule. See Richards , 117 S. Ct. at 1421. A reasonable jury could conclude that the reasons off ered in support of this search merely "consisted of general ities that bore no relation to the particular premises being s earched or the particular circumstances surrounding the sea rch."
United States v. Stewart , 867 F.2d 581, 585 (10th Cir. 1989). That conclusion suggests either that the off icers' concern that Selby was armed and dangerous was

10unreasonable or that the officers employed a genera lized

procedure that was unreasonable as applied to Korne gay's
home.

"In order to justify a `no-knock' entry, the police must have a reasonable suspicion that knocking and annou ncing their presence, under the particular circumstances , would be dangerous or futile, or that it would inhibit the e ffective investigation of the crime by, for example, allowin g the
destruction of evidence." Richards , 117 S. Ct. at 1421 (emphasis added). The ordinary risks that surround a general category of criminal behavior are insuffici ent by themselves to create an exigent circumstance. See i d. (refusing to create a blanket exception to the knoc k-andannounce rule for felony-drug investigations becaus e of the danger they involve and the ease of destroying drug evidence); see also United States v. Bates , 84 F.3d 790 (6th Cir. 1996); Stewart , 867 F.2d at 584-85."If a per se exception were allowed for each category of crimina l investigation that included a considerable--albeit hypothetical--risk of danger to officers or destruc tion of evidence, the knock[-]and-announce element of the F ourth Amendment's reasonableness requirement would be meaningless." Richards , 117 S. Ct. at 1421.

In United States v. Stewart , federal agents obtained a warrant to search the defendant's house for drugs a nd weapons based on evidence that he had supplied the drugs involved in two previous undercover purchases and t hat "substances traffickers do commonly possess and car ry a firearm." Stewart , 867 F.2d at 582. The search was executed by the Denver S.W.A.T. team in accordance with the pre-arranged plan to use "a two-man steel batte ring ram to break down the front door and [then] immedia tely [throw] a full charge stun grenade into the living room." Id. at 583. Before breaking in the door, the S.W.A.T. t eam did not knock and announce its presence. The subsequent search uncovered drugs and other paraphernalia, cas h, and a loaded, semi-automatic pistol. Stewart entered a conditional plea of guilty to distributing cocaine but reserved the right to appeal the denial of his moti on to suppress. In the appeal that followed, the court of appeals reversed. It reasoned, in part, that

11[t]he officers had no information that would have l ed

them to believe that the defendant armed himself on a regular basis. The officers thus had no information whether firearms were present within the house. The one incident involving the defendant and a pistol t ook place away from the defendant's house. [Thus a]ny conclusions regarding the presence of firearms on t he premises were purely conjectural.

Id. at 585. The same situation exists here with regard to the officers' concern that Selby was armed, and it was therefore for a jury to determine the reasonablenes s of this entry as a matter of fact and not for a court to de termine

as a matter of law.

Richards makes clear that the risks generally surrounding murder investigations did not necessari ly create an exigent circumstance in this case. See Ri chards , 117 S. Ct. at 1421. We recognize that, as a practic al matter, officers effectuating an entry into a crimi nal suspect's home might prefer to do so without first announcing their presence. However, the Constitutio n simply does not permit that practice in all instanc es. Consequently, officers who act unreasonably cannot place themselves beyond exposure to liability nor complai n if they are held accountable by persons such as Kornegay me rely because the more "prudent" entry is the unannounced one. Often it is "reasonable" under a section 1983 analy sis to choose that method of entry. However, in view of th e weighty Fourth Amendment concerns at stake and the sanctity of one's dwelling, it will not always be s o. Indeed, section 1983 liability for violations of the Fourth and
Fourteenth Amendments would be all but eviscerated if we were to hold that an unannounced entry into one's h ome is always "reasonable" because it provides a greater m easure of safety to police.5 Cf. id. ("[T]he fact that felony drug investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonabl eness of

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5. Of course, we do not suggest that these officers ought to be liable under section 1983. We only hold that a jury must a ssess the
reasonableness of their conduct.

12the police decision not to knock and announce in a

particular case.").

Nothing in the record before us suggests that the o fficers here had information that Selby regularly carried a weapon or kept weapons in his home. The officers merely kn ew that Selby was a "known drug dealer with previous arrest s for felonies including Robbery First Degree and Possess ion of a Deadly Weapon During the Commission of a Felony." A pp. at 47. A reasonable jury could conclude that this information was not sufficiently particular to excu se the officers' failure to knock and announce their prese nce before breaking down the door to Kornegay's home. " An individual's privacy interests are nowhere more cle arly defined or rigorously protected by the courts than in the home the core of fourth amendment rights." Wanger v

. Bowner , 621 F.2d 675, 681 (5th Cir. 1980) (citing Payton v. New York , 445 U.S. 573, 589 (1980)).

As noted above, the officers knew that Selby had no t shot the murder victim nor did they have evidence that h e possessed the gun that was used. Moreover, the offi cers had conflicting evidence about whether Selby was ev en involved in the murder of Morgan. Two witnesses pla ced him at the scene of the murder, but only one said t hat he had played any role in it.

Finally, a jury could find that any exigency surrou nding the circumstances of this case was eliminated by th e officers' decision to execute the search at 6:00 a. m. One of the officers who executed the warrant explained tha t the
reason the CMTT selected that time was because "usu ally the person is in bed . . . for [our] safety we do [ them] at that
time , there [are] no people on the street . . . the sch ool children [are not] out or anything like that, and . . . to get the people in bed." App. at 84 (emphasis added).

Thus, we cannot conclude on the facts of this case that
there is no issue of material fact as to whether th e CMTT's execution of the search violated clearly establishe d constitutional rights of which a reasonable person would
have been aware.

13

IV.

For the reasons set forth above, we reverse the dis trict court's grant of summary judgment on Kornegay's cla im
that the CMTT's execution of the search violated th e Fourth and Fourteenth Amendments but affirm the grant of summary judgment on her other claims. We remand to the district court for further proceedings consistent w ith this opinion.A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

14