17-1995-cv Harper v. Leahy 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION
A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fo ley Square, in the City of New York, on the 25 th day of June, two thousand eighteen.
PRESENT: P IERRE N. L EVAL , G UIDO C ALABRESI , D EBRA A NN L IVINGSTON , Circuit Judges

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_____________________________________ J UNE H ARPER , Plaintiff-Appellant , v. 17-1995-cv
D ETECTIVE A RTHUR L EAHY , S HIELD N O

. 01783, D ETECTIVE D ANIEL K IRK , S HIELD N O

. 11290, D ETECTIVE C HRISTOPHER T EHAN , S HIELD N O

. 29544, D ETECTIVE C HING N IEH , S HIELD N O

. 27, C ITY OF N EW Y ORK , Defendants-Appellees , P OLICE O FFICER J OHN D OE , Defendant.

_____________________________________ For Plaintiff-Appellant: A NDREW M ANCILLA , Mancilla & Fantone, LLP, New York, New York.2 For Defendants-Appellees: E LIZABETH I. F REEDMAN (Jane L. Gordon, on the brief ), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York. Appeal from a judgment of the United States Di strict Court for the Eastern District of New York (Cogan, J. ) entered May 31, 2017. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-Appellant June Harper appeal s from a May 31, 2017 judgment of the United States District Court for the Eastern District of New York granting Defendants-Appellees’ motion for summary judgment. Plaintiff-Appellant’s claims arise out of the attempted arrest of her son, Kedar Harper, by the defendant police officers at approximately 7:00 a.m., at 910 Caton Avenue, Apartment 52, in Brooklyn, New York (the “Apart ment”). On appeal, Plaintiff-Appellant contends that genuine disputes of material fact precluded the dist rict court from concluding that, at the time of the attempted arrest, the officers had reason to believe th at Kedar resided and was present at the Apartment. We assume the par ties’ familiarity with the underlying facts, the procedural history of the cas e, and the issues on appeal. We review de novo a district court’s grant of su mmary judgment, “construing all the evidence in the light most favorable to the non- movant and drawing all re asonable inferences in that party’s favor.” McBride v. BIC Consumer Prod. Mfg. Co., Inc. , 583 F.3d 92, 96 (2d Cir. 2009). We affirm only where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).3 “The non-moving party may not rely on conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas , 143 F.3d 105, 114 (2d Cir. 1998) (citation omitted). “[A]n arrest warrant . . . implicitly carries w ith it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York , 445 U.S. 573, 603 (1980). “Agents may enter a su spect’s residence, or what they have reason to believe is his residence, in order to eff ectuate an arrest warrant where a reasonable belief exists that the suspect is present.” United States v. Lauter , 57 F.3d 212, 214 (2d Cir. 1995). “[T]he proper inquiry is whether there is a reasonable belief that the suspect resides at the place to be entered to execute an arrest warrant, and whet her the officers have reason to believe that the suspect is present.” Id. at 215 (emphasis in original). “[O] ur reason-to-believe review here does not demand probable cause,” it instea d “requires more than a hunch as to presence, but less than a probability. As with reasonable suspicion, reason to believe is not a particularly high standard . . . .” United States v. Bohannon , 824 F.3d 242, 254, 255 (2d Ci r. 2016). To satisfy this not particularly high standard, the officers need only “have a basis for a reasonable belief as to the operative facts, not that they acquire all av ailable information or that those facts exist.” United States v. Lovelock , 170 F.3d 339, 344 (2d Cir. 1999). Our precedents have “rejected the contention that the police must first conduct a thorough investigation to obtain evidence of an arrestee’s actual presence before entering his residence.” United States v. Terry , 702 F.2d 299, 319 (2d Cir. 1983). Upon review, we conclude that the district court properly granted Defendants-Appellees’ motion for summary judgment. When “[v]iewed in their totality and in a commonsense manner,” the undisputed facts in th e record provided the officers with re ason to believe that Kedar would be4 present at the Apartment at the time of the attempted arrest. Bohannon , 824 F.3d at 257. Notably, there is no dispute that less than seven months before the attempted arrest, a New York City Criminal Court judge issued a bench warran t for Kedar’s arrest, specifying the Apartment as his residence. It is also uncontested that at least three separate pol ice department records identified the Apartment as Kedar’s address. Additionally, police searches of numerous (at least eight) computerized databases uncovered no other residential addresses for Kedar. 1 Moreover, the morning of the arrest, Plaint iff-Appellant was present at th e Apartment and acknowledged that she was Kedar’s mother, further supporting the offi cers’ reasonable belief that Kedar would be present. Likewise, the 7:00 a.m. time of the atte mpted arrest provided the officers with still more reason to believe that Kedar would be present at his residence. See Terry , 702 F.2d at 319 (“[T]he agents arrived at the apartment at 8:45 A.M. on a Sunday morning, a time when they could reasonably believe that Terry would be home.”). “Viewed in their totality and in a commonsense manner,” Bohannon , 824 F.3d at 257, these undi sputed facts provided the officers with ample reason to believe that Kedar would be present at the Apartment at the time of the attempted arrest. To be sure, during the attempted arrest Plaintiff-Appellant told the officers that her son was not at the Apartment and Plaintiff-Appellant now challenges the district court’s crediting police testimony that the officers heard a male voice insi de the Apartment. However, in light of the undisputed evidence detailed above and Bohannon ’s admonition that “reason to believe is not a particularly high standard,” id. at 255, a mother’s comment to the police regarding her son’s whereabouts and any dispute as to the source of any voices that the officers may have heard are

1 The fact that the officers found evidence of the as sociation of Kedar with another nearby address did not undermine the several records showing 910 Caton Av enue as his residence.5 insufficient, under the totality of the circumst ances, to overcome the o fficers’ reasonable belief that Kedar would be present at the Apartment. See id. at 257 (explaining that “segmentation and minimization of individual pieces of evidence fail to conform to the principles of reason-to-believe review”). Because no reasonable jury could fi nd on this record – including the bench warrant, police department records, Plaintiff-Appellant’s own admissions, and the time of the attempted arrest – that the officers lacked a reasonable be lief that Kedar resided and was present at the Apartment, we must conclude that the district court did not err in awar ding Defendants-Appellees summary judgment. We have considered all of Plaintiff-Appellant ’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court