Second Circuit Affirms Dismissal for John Cannavino and Jonathan Zellner in Unreasonable Search Case

On March 29, 2017, the United States Court of Appeals for the Second Circuit affirmed a decision of the United States District Court for the District of Connecticut granting a motion to dismiss the complaint of property owners who claimed that municipal police conducted an unlawful search of their property.  The plaintiffs claimed that the defendant police officers had requested of the plaintiffs’ immediate neighbors that the police be permitted to install video cameras to conduct surveillance of the plaintiffs’ home in an effort to obtain evidence of criminal activity.  Several officers thereafter allegedly installed video surveillance equipment on the neighboring properties and began filming the plaintiffs’ home for a period of several months.  The plaintiffs claimed that this activity constituted an unreasonable search in violation of the Fourth Amendment to the United States Constitution.  They also alleged claims for municipal liability, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, and indemnification.

Attorneys Cannavino and Zellner filed a motion to dismiss on behalf of the defendants, arguing, among other things, that the plaintiffs failed to allege that the defendants had engaged in a “search” for purposes of the Fourth Amendment.  Attorneys Cannavino and Zellner similarly moved for dismissal of the other claims for failure to state a claim upon which relief could be granted.  The Honorable Alvin W. Thompson, in a detailed decision, agreed with the defendants that the conduct at issue did not constitute a “search.”  Judge Thompson noted that the plaintiffs made no allegation that the officers ever physically entered the plaintiffs’ property or home, observed anything other than that which they could observe from a place where they were entitled to be, or observed anything other than what the plaintiffs chose to expose to public view.  Judge Thompson also noted that the plaintiffs made no allegation that the officers used a device that was not in general public use at the time or that they explored any details of the plaintiffs’ home that would previously have been unknowable without physical intrusion.  Judge Thompson similarly found that none of the plaintiffs’ other claims stated a claim upon which relief could be granted, and also found that, with respect to the negligent infliction of emotional distress and negligence claims, the defendants were entitled to governmental immunity.

The plaintiffs appealed the district court’s decision to the United States Court of Appeals for the Second Circuit.  A panel of Second Circuit judges heard argument on March 16, 2017, and, on March 29, 2017, affirmed Judge Thompson’s decision.  The Second Circuit agreed with Judge Thompson that the plaintiffs’ Fourth Amendment claim failed, observing that what a person knowingly exposes to the public through an open door or window does not receive Fourth Amendment protection.  The Court similarly observed that the use of video cameras did not change the result, because such technology cannot be used to explore details of a home that would previously have been unknowable without physical intrusion.  In addition, the Court found that the Plaintiffs’ allegations did not satisfy the elements of a claim of intentional infliction of emotional distress and that the Defendants were entitled to governmental immunity as to the Plaintiffs’ negligence-based claims.