1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-23-1997

Kornegay v. Cottingham

Precedential or Non-Precedential:

Docket 96-7423

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Recommended Citation

"Kornegay v. Cottingham" (1997). 1997 Decisions. Paper 167.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/167
iled July 23, 1997 

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 Force; 

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, United States Court 

of Appeals for the Sixth Circuit, sitting by designation. 
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 officers 

conducted an illegal search of her home in violation of the 

Fourth and Fourteenth Amendments. The district court 

granted defendants' motion for summary judgment based 

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 from which the informant's 

reliability could be assessed; (2) detective Cottingham 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 2611 N. Locust Street; 

and (4) the Crisis Management Tactical Team conducted an unlawful 

entry by failing to comply with the knock-and-announce requirement. 

We will affirm the decision of the district court on the first three claims 

without discussion. 

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I. 

Kornegay and her minor children moved into a house 

located at 2611 N. Locust Street, Wilmington, Delaware in 

April 1994. The previous tenant, Dorothy Selby, had moved 

from that address in January 1994. Her nephew, Shannon 

Selby ("Selby"), occasionally listed his aunt's address as his 

own. 

In April 1994, Selby became a suspect in the April 14, 

1994 murder of Montel Morgan. Wilmington police detective 

DeWayne Cottingham headed that investigation and, after 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 Morgan. 

On May 5, 1994 at 6:00 a.m., members of the Crisis 

Management Tactical Team ("CMTT") executed the warrant 

which had been labeled "high risk" because Selby was 

wanted for Morgan's murder. The CMTT used a battering 

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." They 

entered each room with guns drawn yelling "Police. Search 

Warrant." In an upstairs bedroom, police found Kornegay, 

a male friend, Andre Alexander, and Kornegay's twentymonth 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 brought 

Kornegay's seven-year old son from the adjacent room 

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 "all 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 given 

a copy of the search warrant. Only then did she learn that 

the police were searching for a murder suspect named 

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"Shannon Selby." In all, the CMTT remained in the house 

approximately five minutes. During that time, the officers 

restricted their search to behind furniture and the inside of 

closets. Only the front door was damaged. Kornegay and 

her children, however, were understandably frightened and 

upset by the incident. 

Kornegay subsequently filed a civil rights action under 42 

U.S.C. § 1983 on behalf of herself and her children against 

the officers who executed the search. She alleged that the 

officers had violated the Fourth and Fourteenth 

Amendments by relying on a warrant that was facially 

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 from all 

final decisions of the district courts of the United States." 

28 U.S.C. § 1291.2 

II. 

Kornegay contends that there are issues of material fact 

regarding the reasonableness of the officers' conduct 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 cases 

summary judgment should be granted if, after drawing 

_________________________________________________________________ 

2. In their brief, the appellants cite the collateral 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 summary 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. 

 4 
all reasonable inferences from the underlying facts in 

the light most favorable to the non-moving party, the 

court concludes that there is no genuine issue of 

material fact to be resolved at trial and the moving 

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-Delaware Co., 

998 F.2d 1224, 1230 (3d Cir. 1993)). 

III. 

"Government officials performing discretionary functions 

generally are shielded from liability for civil damages 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 will in 

some cases reasonably but mistakenly conclude that [their 

conduct was lawful]." Orsatti v. New Jersey State Police, 71 

F.3d 480, 483 (3d Cir. 1995). Accordingly, we do not 

inquire into whether these defendants violated the Fourth 

and Fourteenth Amendments. Instead, we must determine 

if a reasonable fact finder could conclude that their conduct 

did not violate clearly established law of which a reasonable 

person would have known. Qualified immunity turns on the 

reasonableness of the officers' belief that their conduct was 

legal not its legality per se. "To determine reasonableness, 

a reviewing court must ask `whether a reasonable person 

could have believed the defendant's actions to be lawful in 

light of clearly established law and the information 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 contours 

sufficiently clear that a reasonable official would

understand that what he is doing violates that right." Id.

Since the instant challenge focuses in large part upon the 

officers' failure to knock and announce their presence, we 

 5 
must determine the extent to which the "knock and 

announce" rule was a "clearly established" right when they 

searched Kornegay's home. 

A. The "Knock and Announce" Rule 

The Fourth Amendment protects "[t]he right of the people 

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 entering a 

dwelling must knock on the door and announce their 

identity and purpose before attempting forcible entry" 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 "knock-andannounce" requirement and it "strikes the appropriate 

balance between the legitimate law enforcement concerns at 

issue in the execution of search warrants and the 

individual privacy interests affected by no-knock entries." 

Id. at 1421-22. 

First, it reduces the likelihood of injury to police 

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 privacy, 

which is to be imposed upon as little as possible in 

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 entry to 

the house by inserting a crowbar into the door and prying 

_________________________________________________________________ 

3. Richards was decided after the search at issue here and thus the 

officers who searched Kornegay's home cannot be charged with 

knowledge of it. However, we cite it because the case affirms the 

necessity for a case-by-case inquiry into the reasonableness of the police 

conduct under the law at the time of the search. 

 6 
it open without first knocking or announcing their presence 

or purpose. As they were forcing the door, the defendant 

voluntarily opened it. We held that the entry was illegal 

because police failed to announce their purpose before 

using the crowbar to pry the door open. That case was 

decided nearly thirty years before the search at issue here. 

Even the highest court in the state where the instant 

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 knocked on 

the street door to the multi-family dwelling, waited a few 

seconds, and then used sledge hammers to break the door 

down. Police then went to the second-floor apartment 

described in the warrant and broke into that apartment 

without knocking or announcing their purpose. The court 

declared "[t]he no-knock search here was unreasonable and 

violative of Fourth Amendment requirements. Prior to the 

entry of a residence, the police officer is required 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 omitted). 

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 warrant. 

The Wisconsin Supreme Court affirmed the trial court's 

denial of the defendant's suppression motion reasoning 

that, given the inherent danger of today's drug culture, 

"police officers are never required to knock and announce 

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 each case, it 

is the duty of a court confronted with the question to 

determine whether the facts and circumstances of the 

particular entry justified dispensing with the knock-andannounce requirement." Id. at 1421. 

 7 
A "no-knock" entry is justified when "the police [ ] 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." 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 with the 

knock-and-announce requirement in four situations: (1) the 

individual inside was aware of the officers' identity 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 in 

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 but 

would not confer `no knock' authority unless the warrant so 

indicated." Bodine, 72 F.3d at 396. Therefore, the officers 

are shielded by qualified immunity only if they "could 

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 defendant's 

actions to be lawful in light of clearly established law and 

the information he possessed.' The objective facts control a 

decision on summary judgment, regardless of allegations of 

intent." Parkhurst v. Trapp, 77 F.3d 707, 712 (3d Cir. 

1996)(citation omitted). With these principles as our 

guidepost, we examine the actions of the officers here. 

B. The Officers' Information 

Detective Cottingham was assigned to investigate the 

April 14, 1994 murder of Montel Morgan, who had been 

shot in the stomach in a high-crime area of Wilmington 

 8 
called "the Bucket." Cottingham learned from one witness 

that Shannon Selby told another individual at the scene to 

shoot Morgan. A second witness confirmed that someone 

other than Selby had shot Morgan but stated only that 

Selby was present. This witness did not implicate Selby in 

the shooting at all. Based upon this information, 

Cottingham obtained an arrest warrant for Selby charging 

him with first-degree murder, first-degree conspiracy, 

second-degree conspiracy, and tampering with a witness.4 

All of the murder-related charges were based on Selby's 

alleged encouragement of the shooter. It is undisputed that 

Cottingham did not think that Selby had shot Morgan. 

After obtaining the arrest warrant, detective Cottingham 

applied for a warrant to locate Selby. Although Cottingham 

initially found three different addresses for Selby among 

various police and court documents, a preliminary 

investigation suggested that Selby's correct address was 

2611 N. Locust Street. Residents in the Bucket confirmed 

that Selby lived in the vicinity, but they did not know 

where. A review of police records disclosed three different 

addresses for Selby, one of which, 2611 N. Locust Street, 

was in that area. The most recent arrest report listing N. 

Locust Street as Selby's address was from January 1993. 

Further investigation disclosed that a new telephone 

number had been issued to a "Dorothy Selby" at that

address. Cottingham made no further effort to determine 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 and the 

murder weapon. Cottingham decided to execute the warrant 

at 6:00 a.m. on the following day and requested that the 

Crisis Management Tactical Team ("CMTT") assist with 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 was 

instructed to consider Selby armed and dangerous. 

_________________________________________________________________ 

4. The second witness reported to police that several individuals 

including Selby threatened her after the incident. 

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

and bullet-proof vests, broke down the door at 2611 N. 

Locust Street. After the door was broken in, the officers 

yelled "Police. Search Warrant." The officers thereafter 

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 rule, as 

the high risk warrant was for a first degree murder suspect 

who was a known drug dealer with previous arrests for 

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, and 

nothing suggests that the police had information that the 

shooter gave Selby the weapon after the shooting. The mere 

fact that the shooting occurred and the murder weapon was 

not recovered does not establish that Selby was in 

possession of it with such certainty that the officers' 

conduct can be ruled reasonable as a matter of law.

"[O]fficers must have more than a mere hunch or suspicion 

before an exigency can excuse the necessity for knocking 

and announcing their presence. . . . [W]e will closely 

scrutinize officers making a forced entry without first 

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 offered in 

support of this search merely "consisted of generalities that 

bore no relation to the particular premises being searched 

or the particular circumstances surrounding the search." 

United States v. Stewart, 867 F.2d 581, 585 (10th Cir. 

1989). That conclusion suggests either that the officers' 

concern that Selby was armed and dangerous was 

 10 
unreasonable or that the officers employed a generalized 

procedure that was unreasonable as applied to Kornegay's 

home. 

"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, 117 S. Ct. at 1421 

(emphasis added). The ordinary risks that surround a 

general category of criminal behavior are insufficient by 

themselves to create an exigent circumstance. See id.

(refusing to create a blanket exception to the knock-andannounce rule for felony-drug investigations because 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 criminal 

investigation that included a considerable--albeit 

hypothetical--risk of danger to officers or destruction of 

evidence, the knock[-]and-announce element of the Fourth 

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 and 

weapons based on evidence that he had supplied the drugs 

involved in two previous undercover purchases and that 

"substances traffickers do commonly possess and carry 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 battering 

ram to break down the front door and [then] immediately 

[throw] a full charge stun grenade into the living room." Id.

at 583. Before breaking in the door, the S.W.A.T. team did 

not knock and announce its presence. The subsequent

search uncovered drugs and other paraphernalia, cash, 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 motion 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 led 

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 took 

place away from the defendant's house. [Thus a]ny 

conclusions regarding the presence of firearms on the 

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 reasonableness of this 

entry as a matter of fact and not for a court to determine 

as a matter of law. 

Richards makes clear that the risks generally 

surrounding murder investigations did not necessarily 

create an exigent circumstance in this case. See Richards, 

117 S. Ct. at 1421. We recognize that, as a practical 

matter, officers effectuating an entry into a criminal 

suspect's home might prefer to do so without first 

announcing their presence. However, the Constitution 

simply does not permit that practice in all instances. 

Consequently, officers who act unreasonably cannot place 

themselves beyond exposure to liability nor complain if they 

are held accountable by persons such as Kornegay merely 

because the more "prudent" entry is the unannounced one. 

Often it is "reasonable" under a section 1983 analysis to 

choose that method of entry. However, in view of the 

weighty Fourth Amendment concerns at stake and the 

sanctity of one's dwelling, it will not always be so. 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 home is 

always "reasonable" because it provides a greater measure 

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 reasonableness of 

_________________________________________________________________ 

5. Of course, we do not suggest that these officers ought to be liable 

under section 1983. We only hold that a jury must assess the 

reasonableness of their conduct. 

 12 
the police decision not to knock and announce in a 

particular case."). 

Nothing in the record before us suggests that the officers 

here had information that Selby regularly carried a weapon 

or kept weapons in his home. The officers merely knew that 

Selby was a "known drug dealer with previous arrests for 

felonies including Robbery First Degree and Possession of a 

Deadly Weapon During the Commission of a Felony." App. 

at 47. A reasonable jury could conclude that this 

information was not sufficiently particular to excuse the 

officers' failure to knock and announce their presence 

before breaking down the door to Kornegay's home. "An 

individual's privacy interests are nowhere more clearly 

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 not shot 

the murder victim nor did they have evidence that he 

possessed the gun that was used. Moreover, the officers 

had conflicting evidence about whether Selby was even 

involved in the murder of Morgan. Two witnesses placed 

him at the scene of the murder, but only one said that he 

had played any role in it. 

Finally, a jury could find that any exigency surrounding 

the circumstances of this case was eliminated by the 

officers' decision to execute the search at 6:00 a.m. One of 

the officers who executed the warrant explained that the 

reason the CMTT selected that time was because "usually 

the person is in bed . . . for [our] safety we do [them] at that

time, there [are] no people on the street . . . the school 

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 the CMTT's 

execution of the search violated clearly established 

constitutional rights of which a reasonable person would 

have been aware. 

 13 

IV. 

For the reasons set forth above, we reverse the district 

court's grant of summary judgment on Kornegay's claim 

that the CMTT's execution of the search violated the 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 with this 

opinion. 
A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

 14