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A Better Partnership
October 31, 2014

COA requires trial to prove consent as an exception to the warrant requirement under §1983

Consent to a residence search may provide police with a way around the warrant requirement under the Fourth Amendment, but it won’t get them around the need for a trial.  In Lavigne v. Forshee, No. 312530, a §1983 action, the Court of Appeals ruled that where an officer is searching a residence without a warrant and factual disputes exist as to whether valid consent to the search was given, the scope of that supposed consent, or whether the consent was at any time revoked, summary disposition is improper.  In addition, the court held that qualified immunity was no defense at the summary disposition phase because when viewed in the light most favorable to plaintiffs, a reasonably competent officer should know that voluntary consent cannot be inferred from mere non-verbal acquiescence to an officer’s claim of lawful authority in the absence of a warrant. 
 
Diane and Kimberly Lavigne, a mother and daughter, appealed the decision of the trial court granting summary disposition in favor of defendant police officers.  The officers, acting on an anonymous tip, appeared at the Lavigne home asking to speak to Kimberly based on information they had received that she was unlawfully growing marijuana and selling it to high school students.  Diane answered the door and claimed Kimberly was not home, but agreed to try to call her.  At this point, the parties dispute whether Diane allowed Detective Forshee into the home or whether Forshee simply followed Diane into the home.  Once inside, Kimberly, who was actually in the home, appeared.  Kimberly claims she asked the officers to leave, while Detective Forshee asserts Kimberly granted her request to follow Kimberly upstairs to observe her grow operation.
 
The trial court granted defendants summary disposition on all claims because it found that the record undisputedly established that the officers had consent to enter the home, and consequently, the officers did not violate plaintiffs’ Fourth Amendment rights against unreasonable searches and seizures.  The Court of Appeals reversed, concluding this case was “rife with material questions of fact” as to whether plaintiffs freely and voluntarily consented to the search of their home, and if consent was in fact given, whether that consent was subsequently revoked. 
 
The Court of Appeals further held that qualified immunity will not apply if a police officer transgresses a right that was clearly established when it would be clear to a reasonable officer that her conduct was unlawful in the situation confronted.  The court ruled that when the disputed facts are viewed in the light most favorable to the non-moving party, Diane’s claim that the officers followed her into the home without her explicit consent and Kimberly’s claim that any consent Diane may have given was subsequently revoked serve to nullify this defense because no reasonable officer in such a situation could believe that remaining in the home and conducting further searches would be lawful. 

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