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October 22, 1986

ALLEN L. FLUDD, Plaintiff,
U.S. SECRET SERVICE, et al., Defendants

The opinion of the court was delivered by: GREENE


 Plaintiff Allen L. Fludd has brought this action against the United States Secret Service and six of its past or present employees, alleging that four Secret Service agents violated his Fourth Amendment rights when they served a handwriting subpoena on him in August 1979, and that two of the agents' superiors also violated his rights because, among other things, they improperly supervised the agents. Plaintiff seeks damages from the six employees in their individual capacities and a declaratory judgment against the Secret Service. Defendants have moved for summary judgment on all of these claims. *fn1" The motion will be granted.


 In 1979, the special agent defendants were investigating a check forgery case involving one Zeno Kittrell. Kittrell had claimed that his D.C. tax refund check was stolen, and he filed a claim for $964.25. According to Kittrell, the check had been sent to 609 Nicholson Street, N.W., Washington, D.C., the home address of his wife, Martha Kittrell, and his stepson, plaintiff Allen Fludd. Although Kittrell was co-owner of the Nicholson Street home, he had moved out in January of 1979 -- some eight months before the events in controversy. Kittrell had taken virtually all of his belongings with him, and he had made only brief visits to Nicholson Street through April, in order to pick up his mail. In fact, in February of 1979, Mrs. Kittrell had changed the locks on all the doors to the Nicholson Street house, and Kittrell was never given a key to these new locks.

 On July 16, 1979, one of the agents interviewed plaintiff about the missing check. However, Fludd stated that he knew nothing about the check, and he declined to provide a handwriting sample. The next day, a handwriting subpoena was issued.

 Three weeks later, on August 3, 1979, two of the agents went to 609 Nicholson Street to serve the subpoena. They knocked on the front door but no one answered; plaintiff claims that he was upstairs listening to the radio. Meanwhile, the agent had the Secret Service dispatcher contact Kittrell in order to let the agents in. The dispatcher soon advised the agents that although Kittrell no longer lived at 609 Nicholson Street, he still had access to the house and would let them in.

 Kittrell arrived about ten minutes later. He told the agents directly what they had learned from the dispatcher: that he no longer lived in the house, but that he owned it and still had access to it. He also stated that he could let the agents in through the back door. Thereafter, two of the agents covered the front door, while Kittrell permitted two other agents to enter the house through the basement which, he explained, was always unlocked. *fn2"

 By this time, Fludd was downstairs, wearing only his undershorts. According to his version of the events, he was standing in the kitchen when he suddenly saw one of the agents enter from the basement stairs with a handgun. The agent pointed the gun in Fludd's face and warned him to freeze; he handed Fludd the subpoena; and he, as well as the other agents, left. *fn3" Fludd asserts that the agents entered "without the consent of any resident," in violation of his Fourth Amendment rights.


 It is agreed that the individual defendants are entitled to summary judgment if they had qualified immunity, and also that the qualified immunity issue is governed by Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). As may be expected, however, the parties disagree in their interpretation of that decision.

 The Harlow decision changed the law of qualified immunity. Before Harlow, courts were required to examine not only the official's knowledge of the constitutional rights in question, but also his subjective intent in acting against those rights. Harlow eliminated subjective element, and the law now is that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818.

 Since Harlow was decided, the Court of Appeals for this Circuit has stated that "if the trial judge determines that the law was not clearly established at the time the conduct occurred, the inquiry ceases and the official is entitled to summary judgment." Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 25 (D.C. Cir. 1984); see also Zweibon v. Mitchell, 231 U.S. App. D.C. 398, 720 F.2d 162, 168 (D.C. Cir. 1983). In line with these decisions, the Court's inquiry must be whether, in August of 1979, the law on consent to authorize a warrantless search was clear. At the time -- as well as now -- the controlling case on this subject was United States v. Matlock, 415 U.S. 164, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974). The Matlock court held that a warrantless search is not illegal if permission therefor was obtained from a third party "who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." Id. at 171. In a footnote, the court explained that this "common authority" does not derive from a third party's mere property interest in the property, but rather depends 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 co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk ...

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