United States District Court, N.D. Iowa, Eastern Division
Leonard T. Strand, Chief Judge
case is before me on a motion (Doc. No. 17) for partial
summary judgment by plaintiff Kendell Kay Canny (Canny) and a
motion (Doc. No. 18) for summary judgment by defendants Bryce
Wayne Bentley (Bentley) and Jay Perkins (Perkins). Each side
has filed a resistance (Doc. Nos. 19 and 22) and a reply
(Doc. Nos. 23 and 24). I find that oral argument is not
necessary. See Local Rule 7(c).
following facts are undisputed except where noted otherwise:
This case arises out of the attempted execution of an arrest
warrant for Canny's son, Kelly Lohrer (Lohrer), on
September 5, 2014. At 1:22 a.m., Buchanan County deputies and
Oelwein police officer Brandon DeJong (DeJong) attempted to
execute the warrant at Canny's residence - 408 Second
Avenue NE, Oelwein, Iowa. They checked the license plates of
the two cars at the residence and determined they were both
registered to Canny. They knocked at the front door, but
nobody answered. They were unsuccessful in locating Lohrer at
21 hours later, at 10:19 p.m., Oelwein police officers
Bentley, Perkins and DeJong returned to Canny's
residence. Defendants contend the Oelwein Police Department
had information that Lohrer lived at, or was present at,
Canny's residence that day. Canny disputes that they had
such information. A call for service record shows a wanted
person record was pulled up at 22:18:57, on September 5,
2014, listing Lohrer's address as 109 Sixth Avenue,
Oelwein, Iowa. Bentley believed the police department had
received a phone call that Lohrer might be staying at his
mother's house or had been observed there. Doc. No. 22-3
at 62. He could not identify the source of this information,
It was my understanding that he was living there and kind of
floating from house to house, residence to residence. I had
had dealings with him at another residence. I believe it was
his girlfriend Katie, I think. That he was living there but
not living there. I don't know - it seemed to me like he
floated from residence to residence.
Id. Bentley explained that officers were keeping an
eye on Katie's house, Lohrer's sister's house and
Canny's house hoping to catch Lohrer in between.
Id. DeJong testified that he was probably
“going off of the information [he] was given by
Buchanan County earlier in the day” in deciding to look
for Lohrer at Canny's residence. See Doc. No.
22-3 at 76. However, he could not recall what specific
information Buchanan County deputies had or who had provided
it. Doc. No. 17-3 at 53. Perkins relied on Bentley's
belief that Lohrer was at Canny's residence and did not
have any personal knowledge of Lohrer's whereabouts.
See Doc. No. 22-3 at 12.
was in fact at Canny's residence approximately three
hours before the officers arrived. Canny argues the
defendants were not aware of that fact. Lohrer had been
residing with his sister, Brianne Lohrer (Brianne), at 109
Sixth Avenue SE in Oelwein. This was the address Lohrer
provided to his probation officer. Brianne lived there with
her boyfriend, Matthew Winter (Winter), and Winter's
mother, Lisa Winter (Lisa). Brianne had contacted
Lohrer's probation officer on September 5, 2014, to
report that she believed Lohrer had been using drugs.
and Winter had followed Lohrer to Canny's house the
evening of September 5. Brianne told Winter to call the
police when Lohrer became argumentative. Winter called his
mother and asked her to call the police for extra patrol
around their house at 109 Sixth Avenue SE. Lisa made the call
at 9:34 p.m. The dispatch for that activity log states:
“Lisa Winter 109 6th Ave SE . . . asking for extra
patrol tonight as Kelly Lohrer is high again and is out of
his minds (sic) - concerned he will return to their house
tonight - advised officers.” Doc. No. 17-3 at 69.
the officers arrived at Canny's residence at 10:19 p.m.,
Bentley went to the front door of the home while DeJong and
Perkins went to the back of the property. All of the blinds
were drawn on the windows. Without knocking, Bentley opened
the front screen door and peered inside the house. Bentley
states he did this so that (1) he would know which way the
inside door opened so somebody could not hide around the
corner from him and (2) to make sure Lohrer was not sitting
in the living room. A curtain covered the front door, but
Bentley could see into the living room by peering through a
gap between the curtain and the door. Defendants contend the
gap was one to two inches wide. Canny states the gap was
smaller (½ inch to ¾ inch) and points out that
Bentley had to lean over the threshold of the door to peer
through the gap in the curtain. In any event, Bentley
testified that plaintiff's exhibits 6 (taken at night)
and 7 (taken at day) accurately depict the gap. See
Doc. No. 17-3 at 26-27. Id. at 85-86. Peering
through the gap in the curtain, Bentley could see an unknown
male seated inside the residence, later identified as Winter.
Bentley observed Winter pack a pipe and smoke its contents.
After inhaling, he coughed violently. Bentley believed this
was consistent with someone smoking marijuana.
radioed for Perkins to come to the front of the house and had
Perkins observe Winter inside the home the same way he had
done. The officers then knocked on the door. Canny opened the
door at which point the officers could smell marijuana. They
entered the premises and asked where the marijuana was.
Brianne handed a bag of marijuana to Bentley. Bentley
questioned Winter and Winter gave the pipe to Bentley. Canny
then gave the officers consent to check the rest of the house
for Lohrer. Lohrer was not in the home. Winter was taken into
September 10, 2014, Bentley instructed Canny to turn herself
into the police station or she would be arrested. Canny
appeared at the police station where she was taken into
custody and charged with gathering where controlled
substances are used in violation of Iowa Code § 124.407,
a serious misdemeanor. She was later released.
time of this incident, Canny worked at the Oelwein Community
School District and was placed on paid administrative leave.
She resigned and entered into a separation agreement with the
school shortly thereafter. On December 17, 2014, the Fayette
County Attorney filed a motion to dismiss the charge against
Canny, which was granted. She filed her complaint in this
court on September 2, 2016, alleging defendants violated her
constitutional right against unreasonable search and seizure
under the Fourth Amendment by entering the curtilage of her
home and engaging in surveillance of the interior of her
Summary Judgment Standards
party may move for summary judgment regarding all or any part
of the claims asserted in a case. Fed.R.Civ.P. 56(a). Summary
judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with affidavits, if any, show that there is no
genuine issue of material fact and that the moving party is
entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
material fact is one that “‘might affect the
outcome of the suit under the governing law.'”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Thus, “the substantive law will identify which
facts are material.” Id. Facts that are
“critical” under the substantive law are
material, while facts that are “irrelevant or
unnecessary” are not. Id.
issue of material fact is genuine if it has a real basis in
the record, Hartnagel v. Norman, 953 F.2d 394, 395
(8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or
when “‘a reasonable jury could return a verdict
for the nonmoving party' on the question.”
Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990
(8th Cir. 2005) (quoting Anderson, 477 U.S. at 248).
Evidence that only provides “some metaphysical doubt as
to the material facts, ” Matsushita, 475 U.S.
at 586, or evidence that is ...