UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-6332

NATHAN WEBB, a/k/a Nathaniel R. Webb,

Plaintiff - Appellant,

v.

LYNNE BRAWN; JAMES F. SMITH; MARK VAN HOUTEN,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (5:12-ct-03042-BO)

Submitted: August 27, 2015 Decided: September 14, 2015

Before MOTZ, KING, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Nathan Webb, Appellant Pro Se. John Thomas Crook, BAILEY & 

DIXON, Raleigh, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Nathan Webb appeals the district court’s judgment granting 

summary judgment to the Defendants on the basis of qualified 

immunity and dismissing Webb’s civil rights complaint filed 

pursuant to 42 U.S.C. § 1983 (2012). Webb claimed that the 

Defendants violated his Fourth Amendment protection against 

unreasonable search and seizure during a warrantless search of 

his home. We affirm.

We review the grant of summary judgment de novo. Pender v. 

Bank of Am. Corp., 788 F.3d 354, 361 (4th Cir. 2015). All facts 

and reasonable inferences are viewed “in the light most 

favorable to the non-moving party.” Dulaney v. Packaging Corp. 

of Am., 673 F.3d 323, 330 (4th Cir. 2012). Summary judgment is 

only appropriate when “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). “[T]he nonmoving party must 

rely on more than conclusory allegations, mere speculation, the 

building of one inference upon another, or the mere existence of 

a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 

(4th Cir. 2013).

Qualified immunity protects “government officials 

performing discretionary functions . . . insofar as their 

conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have 
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known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To be 

entitled to qualified immunity, a defendant must show either 

that his conduct did not violate the plaintiff’s constitutional 

rights, or that even if there was a constitutional violation, 

the right in question was not clearly established at the time 

that the defendant acted. Henry v. Purnell, 652 F.3d 524, 531 

(4th Cir. 2011) (en banc); Ridpath v. Bd. of Governors Marshall 

Univ., 447 F.3d 292, 306 (4th Cir. 2006). “The burden of proof 

and persuasion with respect to a defense of qualified immunity

rests on the official asserting that defense.” Meyers v. 

Baltimore Cty., 713 F.3d 723, 731 (4th Cir. 2013).

The Fourth Amendment prohibits warrantless home searches in 

most instances. Schneckloth v. Bustamonte, 412 U.S. 218, 219 

(1973). Voluntary consent to a search is an exception to the 

warrant requirement. Id. A warrantless search of a home may be 

proper if law enforcement receives voluntary consent from “an 

occupant who shares, or is reasonably believed to share, 

authority over the area in common with a co-occupant who later 

objects.” Georgia v. Randolph, 547 U.S. 103, 106 (2006)

(holding that a present co-occupant’s refusal to consent to a 

search prevails over a present co-occupant’s consent to the 

search). Moreover, if consent to the search is given by a 

person who is present and possesses common authority over the 
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premises, it is valid against the absent, objecting occupant. 

Fernandez v. California, 134 S. Ct. 1126, 1134-35 (2014).

Common authority rests on:

mutual use of the property by persons generally having 

joint access or control for most purposes, so that it 

is reasonable to recognize that any of the coinhabitants has the right to permit the inspection in 

his own right and that the others have assumed the 

risk that one of their number might permit the common 

area to be searched.

U.S. v. Matlock, 415 U.S. 164, 171 n.7.

As the Fourth Amendment guards against unreasonable

searches, there is no violation if an officer could reasonably 

have believed that the consenting party had authority to 

consent. Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990).

“As long as the facts available to the officer at the moment 

warrant a person of reasonable caution in the belief that the 

consenting party had authority, apparent authority to consent 

exists.” United States v. Buckner, 473 F.3d 551, 555 (4th Cir. 

2007) (internal quotation marks and alterations omitted).

Upon our review of the record, we conclude that Webb’s 

girlfriend, Heather Upchurch, had actual and apparent authority 

to consent to the search of the house. She and their infant 

daughter lived in the house with Webb for six months. Upchurch 

had as much interest in the house as did Webb. Upchurch kept 

all of her belongings there. The fact that she believed Webb 

abused their daughter, as later proven at a criminal trial, and 
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she could no longer stay at the house with Webb, did not result 

in the surrender of her authority over the house days after an

abusive incident. See United States v. Backus, 349 F.3d 1298, 

1304 (11th Cir. 2003) (holding wife had authority to consent to 

search after husband’s criminal acts against wife and child

forced them to leave); see also United States v. Brannan, 898 

F.2d 107, 108 (9th Cir. 1990) (holding co-owner of house 

retained actual authority to consent to search even though she 

moved out due to husband’s abuse and husband had changed locks). 

Thus, Upchurch’s consent to search the home prevailed over

Webb’s objections to the search, in light of the fact that she 

was present at the house and Webb elected to be absent despite 

requests from law enforcement that he come to the house. 

Fernandez, 134 S. Ct. at 1135-36.

Even if Upchurch lacked actual authority to consent to the 

search, she had apparent authority. Under the totality of the 

circumstances, we conclude, it was reasonable for the Defendants 

to believe that Upchurch retained authority to consent to the

search. Therefore, the district court did not err in ruling 

that the Defendants were entitled to qualified immunity and 

granting summary judgment on that basis.

Accordingly, we affirm the district court’s judgment. We 

deny Webb’s motion for appointment of counsel. We dispense with 

oral argument because the facts and legal contentions are 
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adequately presented in the materials before this court and 

argument would not aid the decisional process.

AFFIRMED