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No Fourth Amendment violation for deputies’ warrantless entry and search and seizure


Fish v. Brown involves a civil rights lawsuit against two Holmes County, Florida, deputy sheriffs for entering the plaintiff’s home without a warrant and for a search and search in violation of the Fourth Amendment. This is an appeal from the district court’s dismissal on the ground that the deputies were entitled to qualified immunity.

The Plaintiff, Fish, had a sexual relationship with Margo Riesco which ended with ill feelings when Fish told Riesco’s husband about their affair. Unconnected to their relationship, a Florida State court entered an injunction in favor of Fish’s sister and brother-in-law protecting them from Fish and his acts of domestic violence. The injunction included a prohibition from having any firearm in his care custody or possession. Riesco learned of the injunction through the sister-in-law.

Riesco wanted to retrieve her personal belongings from Fish and before driving there she stopped at the Sheriff’s office to request an escort to Rieso’s house, claiming she that she feared for her safety during the encounter. She called Riesco to tell him she was in route to his home for the purpose of retrieving personal items left there.

When they arrived Riesco walked through screen porch doors into the sunroom and the deputies followed. Fish came to the door and the deputies stood behind her. She told Riesco why she was there and that she brought the deputies to watch her so she would not steal anything of hers. He allowed Riesco into the house and the deputies followed. While inside the house they spotted his firearms in the bedroom and he was placed under arrest for violating the domestic violence injunction and resisting without violence. After the criminal charges were dismissed he filed a federal civil rights claim for false arrest, illegal search and seizure, and claims under state law for false arrest, imprisonment, and malicious prosecution

The deputies claimed qualified immunity protection from the lawsuit. Fish claimed a Fourth Amendment claims based on the unlawful entry and search of his home and for the unlawful arrest. Fish claims the deputies entered his home without either a warrant or consent.

The court of appeals opinion starts by offering this famous quote, “Heav’n has no Rage like Love to Hatred turn’d, Nor Hell a Fury like a Woman Scorn’d.”

It  found that the deputies did have qualified immunity from this civil rights lawsuit for the unlawful entry into the house. The deputies had followed Riesco into the house after she was given consent to enter the house the deputies could reasonably have relied on the “consent once removed” doctrine which permits a warrantless entry by police officers into a home when consent to enter has already been granted to an undercover officer and they had observed contraband in plain view. Because the doctrine has not been well settled in the Eleventh Circuit they were entitled to qualified immunity from a Fourth Amendment violation. The law was not sufficiently established at the time of the alleged violation to give the deputies fair warning that their entry into Fish’s sunroom, under the circumstance of this case, would violate his Fourth Amendment rights.   Furthermore their entry into the home from the sunroom was with Fish’s consent when he said “all right” when Riesco said she brought the deputies to make sure she did not steal anything. The seizure of the firearms did not violate Fish’s Fourth Amendment right because they were in plain view.

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