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Teen drinking party not ‘emergency’

Visit to child’s room not ‘reasonable’

A deputy sheriff who entered the unlocked door of a home and shone a flashlight on the face of a sleeping 10-year-old must stand trial on an allegation that he violated the constitutional rights of the homeowners, a federal judge ruled July 3.

Defense attorneys had contended that Sgt. J.A. Wood was protected by the emergency or community caretaker doctrines when he went into the home of Mark and Cheryl Hunsberger after midnight on Feb. 3, 2007.

Even if those doctrines did not apply, the attorneys argued, the doctrine of qualified immunity protected the Botetourt County deputy from suit because he had a reasonable belief in the constitutionality of his actions.

Roanoke U.S. District Judge Samuel G. Wilson disagreed in Hunsberger v. Wood (VLW 008-3-243) after describing Wood’s entry into the home in the light most favorable to the Hunsbergers.

Beginning around 10 p.m. on Feb. 2, a neighbor of the Hunsbergers called the sheriff’s department twice to complain about loud noise and kids being dropped off at the home. When Wood and another officer responded to the first call, the neighbor told them she did not believe the Hunsbergers were at home but that two strange cars were parked at the house.

After the second call, Wood and another officer paid another visit to the house to ask the occupants to move the cars, which were partially in the street. As they approached the house, the lights went out. Wood rang the doorbell 25 or 30 times, but no one responded.

Wood asked the dispatcher to call the owners of the three cars and to transfer the calls to his cell phone. He told the mothers of two teenage boys and William W. Blessard, the stepfather of a teenage girl, to pick up the cars because they were partially in the road.

Blessard was the first parent to arrive at the home, and he was upset and worried because his daughter was supposed to be sleeping over at the home of a female friend and she wasn’t answering her cell phone. He was not familiar with the Hunsbergers or their home.

Blessard and the officers heard a noise in the garage, and he and Wood entered through a walk-in door. They heard someone go down the stairs in the garage into a basement and shut and lock the door. Blessard went down the stairwell, knocked on the door and called for his daughter but got no response.

Wood and Blessard then entered the home from the garage through an unlocked door, and Wood announced himself on the main floor of the house. In another part of the basement, they saw a beer carton, empty beer cans and a half-full bottle of vodka. Inside the house, they encountered the Hunsbergers’ 16-year-old son dressed only in boxer shorts hiding in a bedroom closet. Wood asked him where everyone else was, and the boy responded, “They’re not here?”

After the boy walked past Wood and Blessard and went downstairs, Wood and Blessard went to another bedroom and found someone asleep with only hair visible above the covers. Wood pulled the covers down, shone the light on a girl and asked Blessard if she was his stepdaughter.

Blessard said she was not, and the girl’s screams woke up the Hunsbergers.

Hunsberger, in his bathrobe, suggested they go downstairs, and his wife joined them moments later, very upset that her daughter had awakened to two men in her room. The wife called the sheriff’s department. The couple repeatedly told Wood and Blessard to leave, and they did so after a few more minutes.

The couple filed a complaint against Wood that night and subsequently filed the $10 million suit against Wood and Blessard alleging they had trespassed and violated the homeowners’ Fourth Amendment rights by conducting an unreasonable search.

The Hunsberger’s 18-year-old son and Blessard’s stepdaughter were hiding in the basement with at least one other person while Wood and Blessard were in the home, according to the defense summary judgment motion. Mrs. Hunsberger discovered the children and drove the girl home after Wood and Blessard had left.

On cross-motions for summary judgment, Wilson ruled that the only viable claim against Blessard was for common law trespass.
In denying Wood qualified immunity, Wilson wrote that a “reasonable officer would understand that suspicion that an underage person may be drinking or attending a social occasion in another’s home where others are drinking, absent other circumstances, is not an immediate threat of serious harm that permits that officer to dispense with the warrant requirement.”

Wilson also said that even if Wood’s initial entry could be viewed as objectively reasonable, what he found inside the house, at least before he entered the bedroom of the Hunsbergers’ daughter, should have dispelled any reasonable belief that there was an emergency that justified further intrusion.

Elizabeth K. Dillon, Wood’s attorney, said there is a chance of an interlocutory appeal to the 4th U.S. Circuit Court of Appeals on the qualified immunity issue. “If the Hunsbergers had been gone and Sergeant Wood had not made the warrantless entry into the Hunsbergers’ house under circumstances confronting him, he would not be doing the type of law enforcement work expected and demanded of him by the community,” Dillon argued.

The Hunsbergers’ attorney, Terry N. Grimes, said he was confident the 4th Circuit would uphold Wilson’s decision, although the court frequently has been receptive to qualified immunity arguments. “There are pretty strong facts in this case,” he said.
Wood “is lucky the father didn’t have a gun,” he added. “This could have been a whole lot worse.”

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