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Officer liable for warrantless entry, arrest and search

Where there were no exigent circumstances allowing warrantless entry into a man’s apartment, the entering officer wasn’t entitled to qualified immunity. And because the arrest and search of the man was unlawful, the man was granted summary judgment, with a jury to determine the amount of damages.


This case arises from the warrantless entry by a police officer into Tony McKenna’s apartment, and from his subsequent arrest by three officers for obstruction of justice after the McKenna refused to provide them with identifying documents. I directed the defendant police officers to show cause as to why the court should not grant summary judgment on its own in favor of the pro se plaintiff pursuant to Rule 56(f)(1).

Warrantless entry

Officer Thomas responds by arguing that qualified immunity should apply here because he reasonably believed exigent circumstances existed that justified the warrantlessly entry. Specifically, he claims that he reasonably believed McKenna posed a threat to the officers’ safety and that a jury should judge whether Thomas’s suspicion that McKenna was violent was reasonable.

The court finds that a reasonably objective police officer would not have believed McKenna had no rights and would not have believed exigent circumstances existed. Thomas contravened clearly established constitutional principles under the Fourth Amendment when he entered McKenna’s home without a warrant. An objectively reasonable officer would have understood that Thomas’s actions violated those rights. Accordingly, Thomas is not entitled to qualified immunity.

Unreasonable arrest

I previously found that the officers lacked probable cause to arrest McKenna without a warrant, that the doctrine of qualified immunity did not apply, and that reliance on the prosecutor’s advice that the officers could charge McKenna with obstruction of justice, did not, as a matter of law, overcome the unreasonableness of the officers’ actions.

The officers assert, as they have before, that their reliance on the advice of counsel constitutes an extraordinary circumstance that brings their conduct within the exception to the rule that the doctrine of qualified immunity cannot shield officials from liability when they violate clearly established law. They argue that their conduct was thus objectively reasonable.

Accepting the officers’ version of events as true, the reliance on the advice of counsel will not allow them to invoke the exception. The evidence does not reveal what Erickson told prosecutor Boyer, how long Boyer took to consider the information or whether the advice was unequivocal. He does not claim that Boyer told them they could conduct a warrantless arrest. Boyer’s advice that McKenna could be charged with obstruction of justice is not determinative. The advice must merely be considered in assessing the officers’ reasonableness. I find that Boyer’s advice alone did not create an extraordinary circumstance that would call for the application of the exception.

Unlawful search

Earlier I found that the officers arrested McKenna without probable cause and that the subsequent search of his person by Thomas and Erickson incident to that arrest was also unlawful. Because the law was clearly established at the time of the violation, I found that the officers were not entitled to qualified immunity.

The officers respond by again asserting that they reasonably believed that it was incumbent upon them, as a statutory duty, to obtain McKenna’s personal descriptors. They argue against entering summary judgment in favor of McKenna because a jury could find that there was probable cause to believe that McKenna’s conduct obstructed justice. I am still persuaded there is no genuine issue of material fact regarding the lack of probable cause for the search that followed the unlawful arrest search in the face of a clearly established constitutional right.

Judgment is granted in favor of the plaintiff as to Counts Four, Seven and Eight, subject to a jury determination of the plaintiff’s damages.

McKenna v. Police Chief, Bristol VA, Case No. 1:22-cv-00002, April 18, 2023. WDVA at Abingdon (Jones). VLW 023-3-206. 17 pp.

VLW 023-3-206