Nathan Webb v. Lynne Brawn; James F. Smith; Mark Vanhouten

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6781
NATHAN WEBB,
Plaintiff - Appellant,
v.
LYNNE BRAWN; JAMES F. SMITH; MARK VANHOUTEN,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:12-ct-03042-BO)
Argued: March 19, 2014 Decided: April 28, 2014
Before MOTZ, KING, and THACKER, Circuit Judges.
Reversed by unpublished per curiam opinion.
ARGUED: John Gunter, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. David Stebbins Coats,
BAILEY & DIXON, LLP, Raleigh, North Carolina, for Appellees. ON
BRIEF: Stephen L. Braga, Kevin Cope, Benjamin Wood, Third Year
Law Student, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. J.T.
Crook, BAILEY & DIXON, LLP, Raleigh, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Nathan Webb brings this § 1983 action against police
officers who searched his home without a warrant and in the face
of his repeated refusals to permit the search. The district
court granted the officers’ motion to dismiss. For the reasons
that follow, we reverse.
I.
In September 2009, Webb moved into a house with his
girlfriend, Heather Upchurch, who co-signed the lease on the
home.1 On April 18, 2010, their daughter, S.W., was born. Six
weeks later, on May 31, S.W. was taken to the hospital. The
next day, she was diagnosed with multiple fractures to her ribs
and legs, and child protective services removed her from her
parents’ custody. Following an argument with Webb, Upchurch
decided to move out of the house and relinquished her house keys
to Webb. She then took up residence with her family,
approximately 30 miles away. A day or two later, Upchurch sent
1 The background facts are undisputed. Given that the
district court dismissed the complaint pursuant to Rule 12(b)(6)
for failure to state a claim on which could be granted, we
accept as true any disputed facts as alleged by Webb in his
complaint. See Minor v. Bostwick Labs, Inc., 669 F.3d 428, 430
n.1 (4th Cir. 2012). All quotations are from the complaint or
the public records attached to it.

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a friend to Webb’s house to retrieve her dog and most of her
belongings.
Officer Lynne Brawn of the Town of Cary Police Department
investigated Webb and Upchurch for their role in S.W.’s
injuries. During a June 4 interview, Upchurch told Officer
Brawn that Webb had a gun in his house and that he was a
convicted felon. Upchurch also told Officer Brawn that she
wanted to collect her remaining belongings from Webb’s house.
Later that day, Officer Brawn asked Webb if it would be all
right if Upchurch went to collect the rest of her belongings
from the home, and Webb said that that would be fine. Officer
Brawn then informed Webb that Upchurch would be accompanied by
uniformed officers. Webb protested, but Officer Brawn responded
that Webb had no choice in the matter because this was the
department’s “procedure.” Webb became angry and told Officer
Brawn that he “didn’t want police cars all over his property”
and “didn’t want his home to become a public spectacle in view
of his neighbors.”
Nevertheless, on the evening of June 4, Officers Mark
VanHouten and James Smith drove Upchurch from her family’s home
to Webb’s house to collect her belongings. The officers spoke
with Officer Brawn, who informed them that there was a loaded
weapon in the residence and that Webb was angry about the police
going into the house. When Upchurch and the officers arrived at

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the house, the doors were locked and Webb was not home.
Upchurch telephoned Webb and placed him on speaker phone. Webb
stated that he did not want police on his property and refused
to come home. Webb “received multiple phone calls from . . .
[the] officers asking him to come and open the doors” to the
house so that Upchurch could retrieve her belongings. Webb
continued to refuse, stating that “he did not want them on his
property.”
Officers Smith and VanHouten then “allowed Ms. Upchurch to
force entry into the residence by breaking in through a rear
door.” The officers asked where Webb’s gun was located and
Upchurch told them it was in the bedroom closet. After Officer
VanHouten “search[ed] the residence” and retrieved the weapon,
Officer Smith called Officer Brawn to tell her that the weapon
had been secured.
Officer Brawn then called Webb and “taunting him, sa[id]
that his cooperation was no longer needed, and that they had
gotten in[to]” the house by themselves. Webb was angry and said
that he would file charges against the officers for unlawfully
searching his home without a warrant. When Officer Brawn told
Webb that Upchurch was legally able to enter the residence
because her name was on the lease, Webb responded that Upchurch
had chosen to move out, which was why she no longer had the keys
to the house. Officer Brawn “laughed” and said that it didn’t

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matter now because the officers had found the gun and were
obtaining a warrant for Webb’s arrest. Officer Brawn then went
to Webb’s house to speak with the other officers and take
possession of the weapon.
On June 5, Webb returned to his home to find it ransacked.
He was distraught and attempted to commit suicide by taking
sleeping pills. Upon his release from the hospital, he was
arrested and charged as a felon in possession of a firearm.
After a jury trial, he was acquitted of this charge. He was
later convicted in state court of felony child abuse and is
currently serving his sentence for that crime.
On February 27, 2012, Webb, proceeding pro se from prison,
filed a verified complaint against Officers Brawn, VanHouten,
and Smith pursuant to 42 U.S.C. § 1983. A year later, the
district court granted the defendants’ motion to dismiss for
failure to state a claim on which relief could be granted. Webb
subsequently filed a motion to alter or amend the judgment under
Rule 59(e), which included a new exhibit with additional facts
intended to show that the defendants knew that Upchurch did not
live at his home on the date of the search. Before the district

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court ruled on this motion, however, Webb noted an appeal. The
district court subsequently denied the Rule 59(e) motion.2
II.
At the outset, we must note what is, and what is not, at
issue before us. In his pro-se complaint, Webb made the
detailed factual allegations set forth above, and alleged that
the officers violated his Fourth, Fifth, Eighth, and Fourteenth
Amendment rights. He also asserted various state common law
tort claims.
The officers moved to dismiss the complaint in its entirety
and submitted a lengthy memorandum in support of that motion.
In response to Webb’s “common law tort claims,” the officers
asserted qualified immunity. Importantly, the officers did not
assert qualified immunity with respect to the federal
constitutional claims.
The district court dismissed the entire complaint. In
doing so, the court did not address qualified immunity. Rather,
the court relied on a state appellate court opinion in a
criminal case involving the same parties (but focusing on
2 In his 59(e) motion, Webb included additional facts that
were not in his complaint, e.g., Upchurch did not contribute to
rent or utilities payments and her identification card did not
list the house as her residence. We need not and do not
consider these facts.

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different facts) to conclude that Upchurch was Webb’s cotenant
at the time of the search and that her consent to the search was
voluntarily given. The court further ruled that Webb’s
contemporaneous objection to the search via telephone was
ineffective because Webb was not physically present at the house
at the time of the search. Finding the Fourth Amendment claim
to be the “core” claim in Webb’s complaint, the district court
dismissed all of Webb’s other claims as frivolous.
On appeal, Webb asserts only that the district court erred
in dismissing his Fourth Amendment claim. The officers contend
to the contrary, but in doing so, they do not rely on qualified
immunity. With this understanding of the issue before us, we
turn to the only question presented on appeal: did the district
court err in dismissing Webb’s Fourth Amendment claim?
III.
We review an order granting a Rule 12(b)(6) motion to
dismiss de novo, accepting as true the facts alleged in the
complaint and drawing all reasonable inferences in favor of the
plaintiff. Ridpath v. Bd. of Governors, Marshall Univ., 447
F.3d 292, 306 (4th Cir. 2006). We consider the complaint in its
entirety, including documents incorporated into the complaint by
reference. We can take judicial notice of matters in the public
record. Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180

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(4th Cir. 2009). We may also consider documents attached to the
motion to dismiss, so long as the documents “are integral to the
complaint and authentic.” Id.
The Fourth Amendment generally prohibits law enforcement
officers from entering a person’s home without a warrant. See
U.S. Const. amend. IV; Payton v. New York, 445 U.S. 573, 585
(1980). But “[t]his prohibition does not apply . . . to
situations in which voluntary consent has been obtained, either
from the individual whose property is searched or from a third
party who possesses common authority over the premises.”
Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) (citations
omitted). “‘Common authority’ . . . is not merely a question of
property interest. Rather, it requires evidence of ‘mutual use’
by one having ‘joint access or control for most purposes.’”
United States v. Buckner, 473 F.3d 551, 554 (4th Cir. 2007)
(quoting United States v. Matlock, 415 U.S. 164, 171 n.7
(1974)).
Courts assess the validity of this consent based on the
“totality of the circumstances.” Trulock v. Freeh, 275 F.3d
391, 401 (4th Cir. 2001).3 Relevant factors include whether the
3 Even if a third party lacks the actual authority to
consent to a search, police officers do not violate the
Constitution as long as the third party “had [the] apparent
authority to consent.” Buckner, 473 F.3d at 555. The apparent
authority rule, however, applies only to officers’ mistakes of
(Continued)

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individual providing consent resided at the home, whether access
to the property to be searched was secured, and whether the
third party possessed the means to access the property. Cf.
Buckner, 473 F.3d at 554. The fact that an individual is listed
as an occupant of the property is not necessarily dispositive.
Compare United States v. Brown, 328 F.3d 352, 356 (7th Cir.
2003) (holding that being named on the lease did not by itself
establish authority to consent), with United States v. Backus,
349 F.3d 1298, 1299-1300, 1304 (11th Cir. 2003) (holding that
spouse who jointly owned but no longer occupied marital property
had authority to consent).
Given these governing principles, Webb’s complaint clearly
alleges facts sufficient to support a plausible claim that
Upchurch did not possess authority to consent to the search.
His complaint alleges that: (1) he and Upchurch had broken up
and Upchurch no longer resided at the house, (2) Upchurch did
not possess a key to the house, (3) the doors to the house were
locked when Upchurch arrived with the law enforcement officers,
fact, not mistakes of law. See Moore v. Andreno, 505 F.3d 203,
209 (2d Cir. 2007). The apparent authority rule would not seem
to apply here given that at this juncture, it is undisputed that
the officers knew the relevant facts surrounding Upchurch’s
consent to the search, i.e., that Upchurch had moved out of the
house and that she no longer possessed the keys to the
residence. As such, any mistake the officers made about
Upchurch’s authority to consent would have been a mistake of
law.

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and (4) Upchurch and the officers gained access only by breaking
into the house.
Contrary to the officers’ assertions, the public records
properly attached to the complaint, including Officer Brawn’s
police report, do not contradict Webb’s allegations. Rather,
Officer Brawn’s report corroborates Webb’s account. For Officer
Brawn states in her police report that at the time of the
search, Upchurch was no longer residing at the house, no longer
possessed a key to the residence, and that Webb objected to the
officers entering his property. Moreover, Officer Brawn’s
report further states that when Upchurch arrived with the police
“the door was locked and Mr. Webb was not home,” but that
Upchurch nevertheless “was able to get into the house to get her
things.” In view of these facts, a reasonable jury could infer
that Upchurch, and the officers accompanying her, broke into
Webb’s home. Accordingly, Webb has alleged a plausible Fourth
Amendment claim. Whether Webb can prove it, particularly in the
face of any defenses the officers may raise, is a different
story.
IV.
For the reasons above, the judgment of the district court
is reversed to the extent it dismisses Webb’s Fourth Amendment

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claim for failure to state a claim on which relief may be
granted.
REVERSED

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