Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Canny v. Bentley

United States District Court, N.D. Iowa, Eastern Division

April 4, 2018

KENDELL KAY CANNY, Plaintiff,
v.
BRYCE WAYNE BENTLEY and JAY PERKINS, Defendants.

          ORDER

          Leonard T. Strand, Chief Judge

         I. INTRODUCTION

         This 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).

         II. RELEVANT FACTS

         The 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 this point.

         Approximately 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, but testified:

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.

         Lohrer 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.

         Brianne 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.

         When 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.

         Bentley 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 custody.

         On 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.

         At the 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 home.

         III. ANALYSIS

         A. Summary Judgment Standards

         Any 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).

         A 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.

         An 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.