Robert R. Bellville, Tina Bellville, W. Ronald Shilale, Beverly Shilale v. Town of Northboro and William Lyver, Jr.

United States Court of Appeals
For the First Circuit
No. 03-1519
ROBERT R. BELLVILLE, TINA BELLVILLE, W. RONALD SHILALE, BEVERLY
SHILALE, AND LAMPREY ASSOCIATES, INC.,
Plaintiffs, Appellants,
v.
TOWN OF NORTHBORO AND WILLIAM LYVER, JR.,
Defendants, Appellees,
3COM CORPORATION, D/B/A STARTEK, DOYLE BRADLEY MINNIS, AND JOHN
POWERS,
Defendants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Scott S. Sinrich, with whom Phillips, Silver, Talman, Aframe,
& Sinrich, P.C. was on brief, for Appellants.
Deidre Brennan Regan, with whom Leonard H. Kesten and Brody,
Hardoon, Perkins & Kesten, LLP, were on brief, for Appellees.
July 9, 2004

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LIPEZ, Circuit Judge. On multiple grounds, the
plaintiffs in this section 1983 case seek damages from a town and
one of its police officers because of a search of their office, a
home, and a truck, conducted as part of a police investigation of
the theft of electronic materials from an electronics manufacturing
company. The district court adopted without comment the magistrate
judge’s report and recommendation to grant summary judgment to the
defendants on all claims. On appeal, all but two of the
appellants' challenges to the district court ruling are either
waived due to the appellants' failure to object properly to the
magistrate judge's report, or are so lacking in merit that we can
summarily affirm the district court opinion.
The two claims that require our attention involve the use
of civilians by the police to execute a search warrant. The
district court found that the police officer in charge of the
search, Sergeant William Lyver, Jr., "violated the Plaintiffs'
Fourth Amendment right to privacy by failing to obtain the clerk-
magistrate's approval to utilize civilian's [sic] in conducting the
searches and by not adequately limiting the role played by the
civilians in the searches." Despite the finding of a
constitutional violation, the district court found that the officer
was entitled to qualified immunity because the limitations on
civilian involvement at the time of the alleged violation were not
clearly established. Concluding that there was no violation of the

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plaintiffs' Fourth Amendment rights at all, we affirm on a
different ground.
I.
We draw the following recitation of facts from the
summary judgment record. Plaintiffs Robert Bellville and Ron
Shilale managed the manufacturing department of Star-Tek, an
electronics company, when it was acquired by the 3-Com Corporation
in 1993. 3-Com decided to outsource its manufacturing operations
after the acquisition and contracted with a company called Axcess,
Inc. to find subcontractors. Learning of this development,
Bellville and Shilale decided to exploit the knowledge and
expertise that they had developed at Star-Tek by starting a company
called Lamprey Associates to place bids with Axcess for the 3-Com
contracts. They were still employed by 3-Com when they started
Lamprey and were subject to Star-Tek's non-compete/non-disclosure
agreement, but they recruited engineers and coworkers to work at
Lamprey after hours. The company remained in existence for
approximately one year, during which time it manufactured cables
and networking equipment for 3-Com and other companies.
On July 15, 1994, a 3-Com employee named Sivan Hem
disclosed the connection between Bellville, Shilale, and Lamprey to
company officials and said that Bellville had stolen computer chips
and equipment from 3-Com to use at Lamprey. She also said that he
had altered inventory records to cover up these thefts. Four days

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later, 3-Com contacted the Northborough Police Department regarding
Hem’s allegations, and Sergeant William Lyver began an
investigation. Brad Minnis, a 3-Com security officer, conducted a
parallel internal investigation.
Shilale learned of the 3-Com investigation when he
discovered a note about the investigation on a copying machine at
3-Com and told Bellville that the company suspected them of theft.
On the morning of July 25, Bellville called John Powers, Director
of Manufacturing for 3-Com’s Star-Tek division, and denied the
accusations. Powers spoke with Minnis later that morning and
recounted his conversation with Bellville. Minnis then contacted
Sergeant Lyver for an update on the police investigation and told
him that Bellville was aware of the investigation.
Sergeant Lyver obtained warrants to search Bellville’s
home and car, and Lamprey’s office, later that day. He stated in
the warrant affidavit that he expected to find the following stolen
items during the search: a copying machine, twisted pair cable
analyzers and similar devices, proprietary Star-Tek/3-Com
documents, black boxes for storing circuit boards, computer chips,
telephone/computer interfacing equipment, electronic or paper
records, proprietary Star-Tek trade and manufacturing technologies,
and at least one personal computer. Since he was not familiar with
computers and electronic equipment and needed help identifying 3-
Com property, Sergeant Lyver asked Powers and Minnis to accompany

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1The accounts of the parties differ sharply on the details of
Minnis' search of Bellville's home office. Sergeant Lyver and
Minnis claim that Lyver was only outside for ten to thirty minutes
and Minnis claims that he remained in the kitchen with Mrs.
Bellville during that time. Bellville claims that his conversation
with Sergeant Lyver lasted thirty to forty-five minutes and that
"Minnis had been taking apart computers that I had." Mrs.
Bellville claims that Minnis was alone in the office for forty-five
minutes to an hour and that "every ten minutes [she] would get up
and walk by briefly to see what he was doing." She further claims
that she saw Minnis "going through paperwork, going through [her]
husband's file cabinets, looking through books, doing something on
his computer, accessing it, looking at serial numbers and turning
it over and stuff like that." Since we must view the facts on
summary judgment in the light most favorable to the non-moving
party, we will assume that Minnis was alone in the home office for
one hour. We will also accept Mrs. Bellville's version of Minnis'
search of that office.
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him as he executed the warrant. The town’s chief of police
concurred with this decision; however, Lyver did not get permission
from the state magistrate to include the civilians in the search.
The group searched Lamprey’s office on July 25 and searched
Bellville's home and truck the next day.
Powers and Minnis actively assisted Sergeant Lyver with
the search at Lamprey's office. They opened cabinets and drawers,
reviewed documents, and identified 3-Com property. Minnis also
searched Bellville’s home office and accessed Bellville’s home
computer. He was alone for approximately one hour during this
search while Sergeant Lyver was questioning Bellville outside.1
Mrs. Bellville was in a room adjacent to the office and
occasionally looked in to check on Minnis. Lyver recovered a large
amount of property that he believed to be stolen from 3-Com during

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2The record does not disclose why the court dismissed the
criminal charges.
3Section 1983 provides a private right of action against
“[e]very person who, under color of [law], subjects, or causes to
be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws [of
the United States]” 42 U.S.C. § 1983.
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these searches, including product schematics, customer lists,
cables and other computer components. His criminal investigation
and the 3-Com internal investigation indicated that much of this
material had indeed belonged to 3-Com. Sergeant Lyver later turned
some of the seized items over to 3-Com.
Bellville and Shilale were fired for “gross misconduct”
on August 1, 1994, and a grand jury indicted them for larceny and
conspiracy to commit larceny in March 1995. Their wives were also
indicted for conspiracy. The state court later dismissed the
criminal charges against all four.2
The Bellvilles and Shilales responded to the dismissals
by filing civil suits in state court against Sergeant Lyver, the
Town of Northborough, Minnis, Powers, and 3-Com. The complaint
raised section 1983,3 Massachusetts Civil Rights Act (“MCRA”),
negligent or intentional infliction of emotional distress, and loss
of consortium claims against Lyver and Northborough. It raised
malicious prosecution, MCRA, malicious abuse of process, wrongful
termination, tortious interference with contract, Chapter 93A (the
Massachusetts Consumer Protection Act), intentional infliction of

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emotional distress, conversion, loss of consortium, and section
1983 claims against 3-Com and its employees. The defendants
removed the case to the United States District Court for the
District of Massachusetts and moved for dismissal. The court
denied that motion, and the parties initiated a long and
contentious discovery period.
The defendants filed for summary judgment in January
2002; the court referred that motion to Magistrate Judge Swartwood
for a report and recommendation. On February 24, 2003, the
magistrate judge issued a meticulous fifty page report analyzing
the appellants’ numerous claims and recommending that the motion be
granted. Despite the constitutional violation finding relating to
the involvement of civilians in the searches, he recommended
summary judgment on all of the appellants' section 1983 claims
because he concluded that Sergeant Lyver was entitled to qualified
immunity. His report advised the parties that they had to file
written objections which "specifically identify the portion of the
. . . report to which objection is made and the basis of such
objection" if they wanted to appeal any of his recommendations or
conclusions to the First Circuit. After the appellants objected
with minimal specificity to portions of that report, the district
court overruled those objections, adopted the report, and granted
summary judgment on March 26, 2003.

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4The district court adopted the magistrate judge’s report and
recommendations without comment; therefore, from this point
forward, we will refer to the magistrate judge’s report as the
district court opinion.
-8-
The Bellvilles and Shilales appealed the judgment
pertaining to Lyver and Northborough; however, they did not appeal
the judgment pertaining to the 3-Com defendants. As noted, we will
only discuss the appellants' claims regarding Sergeant Lyver's
decision to include civilians Minnis and Powers in the search of
Lamprey and of the Bellvilles' home. To the extent that the other
claims were preserved with adequate objections to the magistrate
judge's report, the district court's decision on those claims is
summarily affirmed.
II.
The appellants claim that Sergeant Lyver violated their
Fourth Amendment rights by 1) allowing Minnis and Powers to
participate in the searches without prior judicial authorization
and 2) not adequately supervising Minnis during the search of the
Bellvilles' home. The district court concluded that while
“Sergeant Lyver violated the Plaintiffs’ Fourth Amendment right to
privacy by failing to obtain the clerk-magistrate’s approval to
utilize civilian’s [sic] in conducting the searches and by not
adequately limiting the role played by the civilians in the
searches,” he was entitled to immunity because that right was not
clearly established at the time of the search.4 We affirm the

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district court judgment; however, we do so based on our conclusion
that the appellants failed to establish a constitutional violation.
Normally, we endeavor to avoid deciding constitutional
issues and attempt to decide cases on the narrowest grounds
possible. That approach is not available here. In evaluating a
claim of qualified immunity, the Supreme Court has told us that we
must evaluate whether there was a constitutional violation before
we address the other elements of a qualified immunity defense. See
Saucier v. Katz, 533 U.S. 194, 201 (2001) ("If no constitutional
right would have been violated were the allegations established,
there is no necessity for further inquiries concerning qualified
immunity."); Wilson v. Layne, 526 U.S. 603, 609 (1999) (“Deciding
the constitutional question before addressing the qualified
immunity question also promotes clarity in the legal standards for
official conduct, to the benefit of both the officers and the
general public."). Therefore, we must evaluate whether Sergeant
Lyver’s inclusion of the 3-Com officials in the searches led to any
Fourth Amendment violations.
A. The District Court’s Analysis
The district court relied on a decision of the
Massachusetts Supreme Judicial Court (SJC), Commonwealth v.
Sbordone, 678 N.E.2d 1184 (Mass. 1997), to conclude that Lyver
violated the appellants' federal constitutional rights. In
Sbordone, the defendant, a doctor, argued that the police officers'

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use of a civilian investigator from the state insurance fraud
office to assist with a search of his office violated his rights
under Article 14 of the Massachusetts Constitution. According to
the court, the officers claimed that they required the
investigator's assistance because they did not have sufficient
training to conduct the search effectively and because the
investigator had significant experience with insurance fraud in
general and with the defendant in particular. Id. at 1186.
Although the state court orally authorized the investigator's
presence when it issued the search warrant, it did not include that
authorization in the warrant itself. The investigator helped the
officers by sorting through files that were clearly labeled and
alphabetized. The troopers reviewed the files that the
investigator removed from the doctor's filing cabinets before they
were seized.
After noting that the case was one of first impression,
and that nothing in Massachusetts statutory or constitutional law
forbade the police "from utilizing civilians in appropriate
circumstances where such assistance is necessary or will materially
assist the police in executing [the] warrant," id. at 1188
(internal quotation marks omitted), the SJC held that the
investigator's participation in the search violated the defendant's
state constitutional rights because the officers did not exercise
sufficient control over his participation. The court reasoned that

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officers are trained to conduct searches without violating state
and federal law and face civil litigation and departmental
discipline if they fail to do so. Civilians are not subject to the
same controls; therefore, the court held that officers have an
obligation to ensure that civilians do not exceed the lawful bounds
of a warrant during a search. It added that "the required level of
supervision varies depending on the circumstances." Id. at 1189.
The court observed that the officers did not actually rely on the
investigator's specialized knowledge during the search. Instead,
they simply used him to conduct the "purely mechanical exercise of
retrieving clearly labeled and alphabetically stored files based on
names listed [in the warrant]." Id. at 1189 (internal quotation
marks omitted). Given the circumstances, the SJC held that "the
officers should have limited [the investigator's] role in the
search to remaining present to assist the officers with any
technical questions which may have arisen as the officers executed
the warrant, particularly where the officers had ascertained the
alphabetical filing system and had the cooperation of clinic
employees." Id. The court also noted that the "better practice"
when civilians are included in searches is to have the warrant
indicate that the magistrate judge permitted this involvement, id.
at 1188 n.9; however, it did not hold that such permission was
constitutionally necessary.

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5Article 14 of the Massachusetts Constitution is similar but
not identical to the Fourth Amendment to the United States
Constitution. The state provision declares:
Every subject has a right to be secure from all
unreasonable searches, and seizures, of his person, his
houses, his papers, and all his possessions. All
warrants, therefore, are contrary to this right, if the
cause or foundation of them be not previously supported
by oath or affirmation; and if the order in the warrant
to a civil officer, to make search in suspected places,
or to arrest one or more suspected persons, or to seize
their property, be not accompanied with a special
designation of the persons or objects of search, arrest,
or seizure: and no warrant ought to be issued but in
cases, and with the formalities prescribed by the laws.
The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported
by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be
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The states, of course, are free to accord their citizens
rights beyond those guaranteed by federal law. See, e.g.,
Commonwealth v. Gonsalvez, 711 N.E.2d 108, 115 (Mass. 1999)
(holding that Article 14 of the Massachusetts Constitution gives
drivers the right to be free from unjustified automobile searches
even though such rights are not guaranteed by the Fourth
Amendment); Honorable Chief Justice Herbert P. Wilkins, Remarks of
Chief Justice Herbert P. Wilkins to Students at New England School
of Law on March 27, 1997, 31 New Eng. L. Rev. 1205, 1213 (1997) ("I
think of the Supreme Court as describing a common base from which
we can go up.").5 A showing that state law forbids a practice may

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seized.
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be insufficient to demonstrate that the practice violated the
federal rights that are at issue in a section 1983 action. See,
e.g., Martinez v. City of Schenectady, 115 F.3d 111, 116 (2d Cir.
1997) ("[T]hat the warrant was issued in contravention of the New
York State Constitution . . . is an entirely different question
from the issue whether it was objectively reasonable for the
officers to believe they were violating clearly established federal
rights."). Therefore, we must evaluate the district court's
finding of a federal constitutional violation in light of other
precedents.
B. Executing the Search Warrants
The Supreme Court has held that the Fourth Amendment's
prohibition of unreasonable searches and seizures extends not only
to the initiation of searches but also to the manner in which
searches are conducted. See, e.g., United States v. Ramirez, 523
U.S. 65, 71 (1998) ("The general touchstone of reasonableness which
governs Fourth Amendment analysis governs the method of execution
of the warrant.") (citation omitted); Dalia v. United States, 441
U.S. 238, 257 (1979) ("[I]t is generally left to the discretion of
the executing officers to determine the details of how best to
proceed with the performance of a search authorized by warrant--
subject of course to the general Fourth Amendment protection
'against unreasonable searches and seizures.'") (footnote omitted).

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Since the appellants are challenging Sergeant Lyver's execution of
the warrants to search Lamprey's office and the Bellvilles' home
with the help of civilians, we begin our analysis by evaluating
whether Powers' and Minnis' presence during the search was
constitutionally justified at all, even though the appellants did
not directly challenge their presence. We will then use that
evaluation to help guide the rest of our analysis.
C. Participation of Lyver and Minnis in the Searches
Federal constitutional law does not proscribe the use of
civilians in searches. In fact, Congress has explicitly authorized
the practice, see 18 U.S.C. § 3105 ("A search warrant may in all
cases be served by any of the officers mentioned in its direction
. . ., but by no other person, except in aid of the officer on his
requiring it, he being present and acting in its execution."), and
courts have repeatedly upheld the practice. See, e.g., Bills v.
Aseltine, 958 F.2d 697, 706 (6th Cir. 1992) ("Police may
constitutionally call upon private citizens to assist them, and
where assistance is rendered in aid of a warrant . . . the bounds
of reasonableness have not been overstepped."); United States v.
Clouston, 623 F.2d 485, 486-87 (6th Cir. 1980) (upholding search in
which federal agents brought telephone company employees with them
on a search to identify stolen property). Courts have articulated
guidelines for evaluating police involvement of citizens in
searches under the Fourth Amendment's reasonableness standard. The

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civilian must have been serving a legitimate investigative
function. It is impermissible, for example, for a civilian to
"ride along" with officers in furtherance of his own private
interest. See Wilson, 526 U.S. at 613-14 (holding that officers
violated a defendant's Fourth Amendment rights by inviting a news
crew along on a search); Buonocore v. Harris, 65 F.3d 347, 356 (4th
Cir. 1995) ("[W]e have no doubt that the Fourth Amendment prohibits
government agents from allowing a search warrant to be used to
facilitate a private individual's independent search of another's
home for items unrelated to those specified in the warrant. Such a
search is not 'reasonable.'"); Bills, 958 F.2d at 702 (suppressing
evidence discovered by a security guard who "was present, not in
aid of the officers or their mission, but for his own purposes
involving the recovery of . . . property not mentioned in any
warrant"). Also, the officers must have some demonstrable need for
the presence of the civilian. United States v. Sparks, 265 F.3d
826, 832 (9th Cir. 2001) ("Police cannot invite civilians to
perform searches on a whim; there must be some reason why a law
enforcement officer cannot himself conduct the search and some
reason to believe that postponing the search until an officer is
available might raise a safety risk.").
The record demonstrates that Sergeant Lyver requested
assistance from Powers and Minnis because he felt that he did not
have the necessary technical expertise to conduct the search on his

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own and because he believed that the 3-Com officials would be able
to help him identify the items that belonged to the company. See
Wilson, 526 U.S. at 611-12 ("Where the police enter a home under
the authority of a warrant to search for stolen property, the
presence of third parties for the purpose of identifying the stolen
property has long been approved by this Court and our common-law
tradition."); Sparks, 265 F.3d at 831 ("'Where the civilian
participating in the execution of a search warrant is the victim of
a theft who has been requested by police to point out property that
has been stolen from the victim, the courts have unanimously held
that the civilian's presence did not affect the propriety of the
search.'") (quoting Diane Schmauder Kane, Civilian Participation in
Execution of Search Warrant as Affecting Legality of Search, 68
A.L.R.5th 549, § 3(b) (1999)). There is no indication that Powers
and Minnis participated in the searches to further their own
personal ends, nor is there a suggestion in the record that
Sergeant Lyver could have delayed his search and obtained the
necessary technical assistance from another officer. Knowing that
Bellville had uncovered the investigation, Sergeant Lyver
reasonably could have suspected that Bellville would have disposed
of the 3-Com equipment if the search were delayed. Accordingly, we
conclude that the civilian participation in the searches was
reasonable.

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D. Lack of Prior Judicial Approval
The district court cited no authority for its conclusion
that the failure to obtain prior judicial approval for civilian
assistance violates federal constitutional law. Appellants cite no
authority on appeal. We have found none in our own research. In
the absence of any authority, we will not improvise a rule that
seems unnecessary in light of the overarching requirement that the
use of civilians in the execution of a search must still meet the
constitutional standard of reasonableness. With that requirement
in mind, we echo the Sbordone court's cautionary note that it might
be a "better practice," if circumstances permit, for law
enforcement officers to disclose to the magistrate that civilians
will be involved in the execution of the search and for the warrant
to indicate that the magistrate permitted this involvement. Such
civilian involvement is certainly not the norm. Prior disclosure
and approval of that involvement might avoid the type of challenges
we have in this case.
E. Lack of Supervision in Bellville's Home Office
The appellants also object to Sergeant Lyver's decision
to allow Minnis to search Bellville's home office while he spoke
with Bellville outside. We begin our analysis by noting that
"[t]he Fourth Amendment does not explicitly require official
presence during a warrant's execution, therefore it is not an
automatic violation if no officer is present during a search."

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United States v. Bach, 310 F.3d 1063, 1066-67 (8th Cir. 2002). In
fact, in some cases, searches conducted by technical experts
outside of the view of the authorized police officer can actually
reduce the intrusion on the defendant's privacy. See, e.g., id.;
Rodrigues v. Furtado, 575 N.E.2d 1124 (Mass. 1991) (concerning a
search of the defendant's body). Therefore, we look at the
specific circumstances of Minnis' search of Bellville's home office
to see whether the degree of supervision exercised by Sergeant
Lyver was unreasonable. See Bell v. Wolfish, 441 U.S. 520, 559
(1979).
Although the details of Minnis' search are sparse, Mrs.
Bellville claims that she saw him "going through paperwork, going
through [her] husband's file cabinets, looking through books, doing
something on his computer, accessing it, looking at serial numbers
and turning it over and stuff like that." Given the reason for
Minnis' presence (to identify stolen items that Sergeant Lyver
could not), that account does not describe anything that he would
not have done if Sergeant Lyver had been in the room with him. He
would still have taken the computers apart to see whether they were
stolen from 3-Com, and he would have looked at the papers to see
whether they contained the 3-Com trade secrets that Sergeant Lyver
suspected Bellville of stealing. Unlike the situation in Sbordone,
in which the civilian engaged in a "purely mechanical" exercise,
Minnis relied on his technical expertise and familiarity with 3-Com

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property during this search. Sergeant Lyver could not have
supplanted his role if he had been in the room with Minnis.
Moreover, Minnis did not search Bellville's home beyond the office,
and there is no indication that he went beyond the bounds of the
warrant. See Bach, 310 F.3d at 1067 ("If a practice substantially
increase[s] the time required to conduct the search, thereby
aggravating the intrusiveness of the search, then it may be
reasonable to avoid that practice.") (internal quotation marks
omitted); United States v. Heldt, 668 F.2d 1238, 1259 (D.C. Cir.
1981) ("[A] flagrant disregard for the limitations in a warrant
might transform an otherwise valid search into a general one,
thereby requiring the entire fruits of the search to be
suppressed.").
In short, Sergeant Lyver's decision to question Bellville
outside the home during Minnis' search of the home office did not
result in a greater intrusion upon the Bellvilles' Fourth Amendment
right to privacy. The degree of supervision that he exercised over
Minnis during the search was not unreasonable. There was no
violation of the appellants' Fourth Amendment rights.
Affirmed.

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