evidence are "intimately associated with the judicial phase of the criminal process," as that phrase is used in Imbler. The case at bar bears no meaningful resemblance to a prosecutor advising the police about how to conduct their investigation in the first place, or whether they have probable cause for an arrest, as in Burns ; or to a prosecutor's participation in a police investigation before probable cause exists to arrest anyone, as in Buckley.
Thus it matters not whether Wales's advice to Thornton was proper or even lawful, a question upon which I express no view. In any event, Wales's conduct is absolutely immune from a suit for money damages. Any other conclusion, in circumstances such as these, would inhibit prosecutors in the performance of their duties to a degree recognized by the Supreme Court in Imbler as the policy reason for a prosecutor's absolute immunity.
(b) Qualified Immunity
On this aspect of the case, where agent Thornton moves for summary judgment on the ground of her qualified immunity from suit, I must view the evidence in the light most favorable to plaintiff, the nonmoving party.
Specifically, I must accept as true the testimony of the senior Lavins that on March 12, during the first of the agents' three visits to the home, Thornton discovered and removed a rifle and a shotgun belonging to plaintiff, explaining as she did so that plaintiff was a "convicted felon" and had no right to possess firearms. See testimony of Mary Lavin, Tr. 433-34; Louis Lavin, Tr. 500. I must also draw plaintiff's requested factual inference that in making that statement, Thornton sought to mislead the Lavins. The inference is based on the conceded fact that, prior to his guilty plea to the bank fraud count in this case, plaintiff had not been convicted of a felony.
It is also the fact that neither Mary nor Louis Lavin objected to the agents' removal of plaintiff's firearms, either on March 12 or on the subsequent March 13 and March 16 visits, when additional weapons were seized.
The decisive question in the case is whether qualified immunity applies to Thornton's conduct in seizing plaintiff's firearms in the manner described by his parents, after having obtained consents in the forms introduced at the suppression hearing before each of the three searches.
Qualified or "good faith" immunity is an affirmative defense that must be pleaded and proved by a defendant official. Gomez v. Toledo, 446 U.S. 635, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980). Government officials performing discretionary functions "generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Because the test is what "a reasonable person would have known," the qualified immunity defense "turn[s] primarily on objective factors." Id. at 819. The trial judge must consider "not only the currently applicable law, but whether that law was clearly established at the time an action occurred." Id. at 818 (footnote omitted).
Applying these criteria to the case at bar, I conclude that agent Thornton, having received from Louis Lavin broadly worded search consent forms, never subsequently withdrawn or limited, which entitled the agents to take from the Lavin home "any letters, papers, materials or other property which they may desire," did not violate any of plaintiff's clearly established constitutional rights by seizing his firearms and certificates of title, even if (which I assume for the sake of the analysis) no independent lawful cause existed for seizure of those items.
It is well settled that a search conducted pursuant to consent is not subject to the Fourth Amendment's requirements of a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). However, the consenting party may limit the scope of the search or seizure he has authorized in the same way that the particularity requirement of a warrant restricts the areas to be searched and the items to be seized. Florida v. Jimeno, 500 U.S. 248, 252, 114 L. Ed. 2d 297, 111 S. Ct. 1801 (1991); United States v. Dichiarinte, 445 F.2d 126, 130 n.3 (7th Cir. 1971). A search conducted outside the scope of actual consent, and without a warrant or probable cause, is unreasonable and violates the Fourth Amendment. See Jimeno, 500 U.S. at 251; Dichiarinte, 445 F.2d at 128.
In the case at bar, it is common ground that Agent Thornton had neither a warrant nor probable cause to seize Lavin's firearms and certificates of title. Accordingly, the central issue in determining whether Lavin's firearms and certificates of title were seized in violation of his constitutional rights is whether the seizure fell within the scope of the elder Lavins' consent. "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness -- what would the typical reasonable person have understood by the exchange between the officer and the suspect." Jimeno, 500 U.S. at 251; see also United States v. Evans., 27 F.3d 1219, 1231 ("A person's conduct can be indicative of the scope of a consensual search.").
Based on the consent forms and the circumstances surrounding their execution, I conclude that a reasonable person would have interpreted the Lavins' consent as extending to the seizure of the property at issue. On the point at issue, the consent forms signed by Louis Lavin could not have been more broad. Although handwritten annotations on the form limited the physical areas within the house where the agents could search, there was no limit on the items that could be seized from those areas.
Cf. Altom v. United States, 454 F.2d 289, 290-91 (7th Cir. 1971), cert. denied, 406 U.S. 917, 32 L. Ed. 2d 116, 92 S. Ct. 1765 (1972) (in response to defendant's objection to language of consent form authorizing agents to seize any property "they may desire," agents crossed out language in favor of detailed list of items).
In addition, there is no evidence that the elder Lavins revoked or limited their consent subsequent to signing the forms. see United States v. Covello, 657 F.2d 151, 155 (7th Cir. 1981) (holding that the defendant "never expressly revoked his consent, and the signed form [identical to the forms signed by Louis Lavin] indicates his initial consent was not narrow . . . ."); cf. United States v. Bily, 406 F. Supp. 726, 728-29 (E.D. Pa. 1975) (holding that defendant's statement -- "That's enough. I want you to stop." -- immediately revoked consent to agents' seizure of any "property which they may desire"). Moreover, neither Mary nor Louis Lavin objected to the seizure of the firearms or the certificates of title. See United States v. Perez, 948 F. Supp. 1191, 1201 (S.D.N.Y. 1996) (holding that agents reasonably believed that consent extended to items seized since defendant's father reviewed the items to be seized, did not object to the seizure of the items, and signed a receipt); United States v. Gazzara, 587 F. Supp. 311, 328 (S.D.N.Y. 1984) (holding that consent to seizure of evidence in the nature of contraband or counterfeit currency extended to address books "given the broad language of the form . . . and the fact that she at no time objected to seizure of the books . . . ."). In short, nothing in the record suggests that Louis Lavin "intended his consent . . . to be narrower than that which appears on the consent form." Evans, 27 F.3d at 1231 (upholding search and seizure based on consent form identical to the form signed by Louis Lavin); see also United States v. Reeves, 6 F.3d 660 (9th Cir. 1993).
Given the absence of any limiting factors, and the fact that the consent form allowed the agents to seize whatever "they may desire," it was reasonable for Agent Thornton to believe that the elder Lavins had consented to the seizure of Kevin Lavin's firearms and certificates of title.
In light of this broad consent, the agents were not required to establish probable cause or any other independent lawful justification for the seizure. See Schneckloth, 412 U.S. at 219. Accordingly, Agent Thornton's conduct did not violate any clearly established constitutional rights and she is shielded from any liability for civil damages by qualified immunity.
This analysis applies with equal force to AUSA Wales. Agent Thornton seized the property at issue only after receiving authorization from Wales. Although the record does not indicate the substance of their conversation, it is reasonable to assume that Agent Thornton explained to Wales that the Lavins had signed the standardized consent form. As discussed above, the consent form authorized the seizure of Lavin's firearms and certificates of title, even in the absence of probable cause. Thus, even if Wales is not absolutely shielded from suit, summary judgment in his favor is warranted on the ground of qualified immunity.
For the foregoing reasons, the defendants are entitled to summary judgment on the ground that they are immune from plaintiff's civil action for money damages. The Clerk of the Court is directed to enter judgment dismissing plaintiff's complaint against each defendant with prejudice.
It is SO ORDERED
Dated: New York, New York
March 24, 1997
CHARLES S. HAIGHT, JR.