The Honorable George B. Daniels, of the United States 1 District Court for the… v. -- 12 13 Joseph A. Andreno, Delaware County Deputy Sheriff

* The Honorable George B. Daniels, of the United States 1
District Court for the Southern District of New York, sitting by 2
designation. 3
-1-
06-3623-cv
Moore v. Andreno
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term 2006 4
(Argued: February 7, 2007 Decided: October 22, 2007) 5
Docket Nos. 06-3623-cv(L), 06-3748(XAP) 6
-----------------------------------------------------x 7
RICHARD B. MOORE, 8
9
Plaintiff-Appellee-Cross-Appellant, 10
11
-- v. -- 12
13
JOSEPH A. ANDRENO, DELAWARE COUNTY DEPUTY SHERIFF AND 14
KURT R. PALMER, DELAWARE COUNTY DEPUTY SHERIFF, 15
16
Defendants-Cross-Claimants-Appellants- 17
Cross-Appellees, 18
19
COUNTY OF DELAWARE AND THOMAS MILLS, DELAWARE COUNTY 20
SHERIFF, 21
22
Defendants-Cross-Claimants, 23
24
RUTH M. SINES, 25
26
Defendant-Cross-Defendant. 27
28
-----------------------------------------------------x 29
30
B e f o r e : WALKER and SACK, Circuit Judges, and DANIELS, 31
District Judge.*
32
Appeal by Defendants Andreno and Palmer from a judgment of 33
the United States District Court for the Northern District of New 34
York (Thomas J. McAvoy, Judge) denying their motion for summary 35
judgment. Because the law governing third-party consent searches 36

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-2-
is unsettled, and because defendants made a reasonable mistake in 1
applying that law to the situation with which they were 2
confronted, we hold that defendants are entitled to qualified 3
immunity and the district court erred in denying them summary 4
judgment. 5
REVERSED and REMANDED. 6
FRANK W. MILLER, East 7
Syracuse, N.Y., for 8
Defendants-Cross-Claimants- 9
Appellants-Cross-Appellees. 10
11
TERRENCE P. O’LEARY, Walton, 12
N.Y., for Plaintiff-Appellee- 13
Cross-Appellant. 14
JOHN M. WALKER, JR., Circuit Judge: 15
Courts have long acknowledged that a person has the right to 16
establish a private sanctum in a shared home, a place to which he 17
alone may admit or refuse to admit visitors. Yet, with the 18
recurrence of domestic violence in our society, we are loath to 19
assume that a man may readily threaten his girlfriend, take her 20
belongings, lock her out of part of his house, and then invoke 21
the Fourth Amendment to shield his actions. Deputies Joseph A. 22
Andreno and Kurt R. Palmer, responding to an emergency call, were 23
faced with reconciling these two competing interests. While they 24
misapplied the relevant constitutional calculus, they are police 25
officers, not lawyers or mathematicians. And thus, because the 26
law governing the authority of a third party to consent to the 27
search of an area under the predominant control of another is 28

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1 Like the district court, we rely on the facts set forth in 1
defendants’ statement of material facts in light of the 2
plaintiff’s failure to respond timely to the defendants’ summary 3
judgment motion. 4
-3-
unsettled, and because Deputies Andreno and Palmer made a 1
reasonable mistake in applying that law to the situation with 2
which they were confronted, the district court erred in denying 3
them summary judgment on qualified immunity grounds. 4
BACKGROUND 5
Richard B. Moore and Ruth M. Sines were on-again, off-again 6
lovers.1 They lived together in Moore’s home for a period of 7
time in 1996-1997 and again in 2001-2002. Sines had a key to 8
Moore’s home; her furniture was there and she paid some of the 9
bills. However, Sines was subject to certain restrictions: her 10
children lived with their fathers and Moore’s study was “off 11
limits” to her, and it was undisputed that Moore, as she put it, 12
“always kept it locked.” 13
On or about April 9, 2002, while traveling to New York from 14
Tennessee, Moore and Sines had an argument, and Moore threatened 15
to kill Sines. Shortly after their return two days later to 16
Moore’s home in Delaware County, New York, Sines decided to move 17
out and had begun to pack her belongings when she discovered that 18
her helmet and snorkeling equipment were missing. Sines “went 19
upstairs to see what had been going on upstairs in the last two 20
days,” suspecting that Moore had moved her effects. Upstairs, 21

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2 It is not clear from the record whether Sines entered 1
Moore’s study prior to the arrival of the Deputies in order to 2
verify whether or not her helmet and snorkeling equipment were, 3
in fact, in that room -- and if not, why not. She presumably had 4
an opportunity to do so, as she cut the bolts prior to calling 5
the Sheriff’s Department. 6
3 Sines found a medical bag or briefcase in the closet. Only 1
after opening it -- perhaps thinking her snorkeling equipment 2
-4-
she noticed two new locks on the door to Moore’s study. Thinking 1
that her missing equipment might be in Moore’s study, Sines cut 2
the locks with a bolt cutter. 3
Sometime thereafter, Sines received a telephone call from an 4
unidentified caller. Fearing that it might be Moore and that he 5
could be en route to his home and bent on violence, Sines called 6
the Delaware County Sheriff’s Department. The Sheriff’s 7
Department dispatched Deputies Andreno and Palmer to the scene. 8
Upon their arrival, a “hysterical” Sines requested the 9
Deputies’ assistance in retrieving her belongings from Moore’s 10
study.2 She explained that she feared that Moore might return at 11
any moment. She also informed the Deputies that she “wasn’t 12
allowed in th[e] [study] unless [Moore] was there” and that she 13
had cut the locks off the door. She may also have informed them 14
that the Deputies were likely to find marijuana in the study. 15
In the company of the Deputies, Sines entered the study and 16
searched it, including by opening a desk drawer and rummaging in 17
a closet. In both places, Sines discovered drugs and drug 18
paraphernalia.3 The Deputies then seized the drugs. 19

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might be in the medical bag -- did she discover the drugs. 1
4 Moore also named as defendants the County of Delaware, its 1
Sheriff Thomas Mills, and Ruth Sines. The district court 2
dismissed his claims against those defendants, and he has not 3
appealed. 4
-5-
On May 8, 2003, a state grand jury indicted Moore on two 1
counts of criminal possession of a controlled substance in the 2
fourth degree and one count of criminal possession of a 3
controlled substance in the fifth degree. On February 9, 2004, 4
the county court, after suppressing the evidence taken from the 5
scene, dismissed the indictment. 6
Moore then filed suit in the United States District Court 7
for the Northern District of New York against, principally,4
8
Deputies Andreno and Palmer, asserting claims under 42 U.S.C. §§ 9
1981, 1983, 1985, and state law. The gravamen of his complaint 10
is that the Deputies’ entry into his study and seizure of his 11
drugs violated the Fourth Amendment to the United States 12
Constitution. Moore does not dispute the legality of the 13
Deputies’ entry into his home; he contests only the narrower, and 14
more nettlesome, question of their entry into and search of his 15
study. Cf. United States v. Karo, 468 U.S. 705, 726 (1984) 16
(O’Connor, J., concurring). 17
Defendants Andreno and Palmer moved for summary judgment, 18
arguing in the alternative that their search of the study was not 19
unconstitutional or, if it was, that they were nevertheless 20

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-6-
entitled to qualified immunity. 1
The district court (Thomas J. McAvoy, Judge) first 2
considered whether Moore had properly alleged a constitutional 3
violation. The district court inquired whether Sines had actual 4
or apparent authority to consent to a search of the study, or 5
whether other exigent circumstances justified the search. The 6
district court noted that “[a] third party may validly grant the 7
requisite consent if she has joint access or control of the 8
property for most purposes,” Moore v. Andreno, No. 3:05-cv-0175, 9
2006 WL 2008712, at *3 (N.D.N.Y. July 17, 2006), and acknowledged 10
that generally when “co-occupants are residing together not as 11
mere roommates, but as part of an intimate relationship, social 12
expectations are that the co-occupants of the home enjoy full 13
access to the entire home,” id. at *6. The district court 14
nevertheless concluded that “a fair-minded trier of fact could 15
reasonably conclude that [Moore] maintained exclusive control 16
over the study and that Sines did not have actual, apparent, or 17
implied authority to consent to entry into that room.” Id. at 18
*7. The district court likewise held that exigent circumstances 19
could not justify the Deputies’ entry into the study. Although 20
Sines had complained to the Sheriff’s Department of possible 21
domestic violence, her allegations, the district court explained, 22
were stale: they “pertained to conduct that occurred several days 23
earlier. . . . There was nothing urgent or imminent.” Id. at 24

-- 6 of 29 --

-7-
*10. The district court therefore held that Moore had 1
“established a colorable claim of a constitutional violation.” 2
Id. at *7. 3
The district court next considered whether the Deputies were 4
entitled to qualified immunity, and denied it. The district 5
court held that “[i]t was clearly established at all times 6
relevant hereto that third-party consent is valid” only under 7
certain, well-defined circumstances. Id. at *8. Without 8
extended discussion, the district court also held that no 9
reasonable officer could have believed that exigent circumstances 10
justified the search. Id. at *11. The Deputies appealed. 11
DISCUSSION 12
The Deputies argue that the district court misapplied the 13
law governing third-party consent searches and searches 14
predicated upon exigent circumstances. First, the Deputies 15
contend that the “lower court erred when it concluded that the 16
Deputies could not reasonably have believed that Sines had the 17
authority to enter into [Moore’s] study.” Appellants’ Br. at 20. 18
Second, they liken their behavior to that of the officers in 19
United States v. Miller, 430 F.3d 93 (2d Cir. 2005), who believed 20
that the area they searched harbored an individual posing a 21
danger to others on the scene; on the basis of this comparison, 22
they urge us to reverse the district court’s conclusion that 23
exigent circumstances did not justify the search of Moore’s 24

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-8-
study. 1
The Deputies also argue that the district court improperly 2
denied them qualified immunity. Whether or not the search of 3
Moore’s study was unconstitutional, they say, it was not so 4
egregious a constitutional violation that reasonable minds could 5
not differ as to its putative legality, especially in light of 6
the confusion in the law surrounding the scope of co-occupants’ 7
authority to consent to searches of shared premises. 8
As a general rule, the denial of summary judgment is not 9
immediately appealable. See 28 U.S.C. § 1291. “Under the 10
collateral order doctrine, however, [we will review] the denial 11
of a qualified-immunity-based motion for summary judgment . . . 12
to the extent that the district court has denied the motion as a 13
matter of law.” O’Bert ex rel. Estate of O’Bert v. Vargo, 331 14
F.3d 29, 38 (2d Cir. 2003). Unlike in most such appeals, 15
however, the plaintiff here has not filed a statement of material 16
facts, and so, like the district court, we are unable to accept 17
his facts for purposes of deciding whether the Deputies may 18
properly invoke qualified immunity. Cf. Salim v. Proulx, 93 F.3d 19
86, 91 (2d Cir. 1996) (permitting immediate appeal when 20
defendants accepted plaintiff’s version of the facts). 21
Nevertheless, our appellate jurisdiction over this case is 22
not in doubt. The district court’s holding that the law 23
governing third-party consent searches was clearly established is 24

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-9-
a conclusion of law and is thus immediately appealable. See 1
Proulx, 93 F.3d at 89 (noting that the collateral order rule is 2
“easy to apply” when a defendant challenges a denial of qualified 3
immunity on the argument “that the district court erred in ruling 4
that the law the defendant is alleged to have violated was 5
clearly established”). Moreover, while we think it a closer 6
question, the district court’s conclusion that “it cannot be said 7
that the Deputies acted reasonably under the circumstances” is 8
also immediately appealable. Moore, 2006 WL 2008712, at *9. The 9
district court’s determination on that score did not require 10
resolution of disputed facts; rather, the district court came to 11
its decision on the basis of the uncontroverted, albeit one- 12
sided, record before it. In light of the plaintiff’s counsel’s 13
failure to oppose the defendants’ motion, the only version of 14
facts that the court had before it -- and therefore the 15
undisputed version of the facts -- was that proffered by the 16
defendants. 17
And so, we now turn to the inquiry into the merits of a 18
qualified immunity defense: 19
The first step in a qualified immunity inquiry is to 20
determine whether the alleged facts demonstrate that a 21
defendant violated a constitutional right. If the 22
allegations show that a defendant violated a constitutional 23
right, the next step is to determine whether that right was 24
clearly established at the time of the challenged action -- 25
that is, “whether it would be clear to a reasonable officer 26
that his conduct was unlawful in the situation he 27
confronted.” A defendant will be entitled to qualified 28
immunity if either (1) his actions did not violate clearly 29

-- 9 of 29 --

5 Despite continued criticism of this “rigid order of battle,” 1
see Scott v. Harris, 127 S. Ct. 1769, 1774 n.4 (2007) (internal 2
quotation marks omitted), unless and until the Supreme Court 3
heeds the plea to overrule Saucier, we will continue to ask first 4
whether a constitutional violation has occurred and only then ask 5
whether defendants are nevertheless entitled to qualified 6
immunity. Cf. Pierre N. Leval, Judging Under the Constitution: 7
Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1275 (2006). 8
-10-
established law or (2) it was objectively reasonable for him 1
to believe that his actions did not violate clearly 2
established law. 3
4
Iqbal v. Hasty, 490 F.3d 143, 152 (2d Cir. 2007) (citations 5
omitted) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).5
6
We address these steps in order, beginning with the question of 7
whether the Deputies’ conduct, as alleged, violated a 8
constitutional right. We review the district court’s conclusions 9
de novo. Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 10
2003). 11
I. The Constitutional Violation 12
A. Third-Party Consent 13
The Fourth Amendment forbids “unreasonable” searches and 14
seizures. This constitutional bulwark against government 15
intrusion into the lives of private citizens is made up of an 16
interlacing web of standards and rules. For instance, “[w]e must 17
balance the nature and quality of the intrusion on the 18
individual’s . . . interests against the importance of the 19
governmental interests alleged to justify the intrusion,” United 20
States v. Place, 462 U.S. 696, 703 (1983), under the “totality of 21

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-11-
the circumstances,” United States v. Knights, 534 U.S. 112, 118 1
(2001) (internal quotation marks omitted). Yet the Supreme Court 2
has also admonished that a warrantless search is “per se 3
unreasonable . . . subject only to a few specifically established 4
and well-delineated exceptions.” Schneckloth v. Bustamonte, 412 5
U.S. 218, 219 (1973) (omission in original) (internal quotation 6
marks omitted). 7
In United States v. Matlock, the Supreme Court explicated 8
one such “well-delineated” exception: that pertaining to 9
“search[es] of property, without warrant and without probable 10
cause, but with proper consent voluntarily given.” 415 U.S. 164, 11
165-66 (1974). Such consent may be given by a third party. As 12
the Court has explained, 13
the authority which justifies the third-party consent . . . 14
[rests on] mutual use of the property by persons generally 15
having joint access or control for most purposes, so that it 16
is reasonable to recognize that any of the co-inhabitants 17
has the right to permit the inspection in his own right . . 18
. . 19
20
Id. at 171 n.7. 21
We have refined the Matlock rule, holding that a third party 22
has authority to consent to a search of a home when that person 23
(1) has access to the area searched and (2) has either (a) common 24
authority over the area, (b) a substantial interest in the area, 25
or (c) permission to gain access to the area. United States v. 26
Davis, 967 F.2d 84, 87 (2d Cir. 1992); see also United States v. 27

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6 Another refinement of Matlock is found in United States v. 1
Groves. See 470 F.3d 311, 319 (7th Cir. 2006) (noting that 2
factors indicative of third party’s authority include “(1) 3
possession of a key to the premises; (2) a person’s admission 4
that she lives at the residence in question; (3) possession of a 5
driver’s license listing the residence as the driver’s legal 6
address; (4) receiving mail and bills at that residence; (5) 7
keeping clothing at the residence; (6) having one’s children 8
reside at that address; (7) keeping personal belongings such as a 9
diary or a pet at that residence; (8) performing household chores 10
at that residence; (9) being on the lease for the premises and/or 11
paying rent; and (10) being allowed into the residence when the 12
owner is not present” (citations omitted)); see also 4 Wayne R. 13
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 14
8.3(a), at 148 n.22 (4th ed. 2004) (“The Matlock formulation is 15
not a model of clarity.”). 16
-12-
Gradowski, 502 F.2d 563, 564 (2d Cir. 1974) (per curiam).6
1
Despite the stringency of these rules concerning third-party 2
consent searches, we also ask whether a police officer’s 3
objectively reasonable belief that he has obtained consent, even 4
if in fact he has not, renders a search constitutional. See 5
Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (holding a search 6
constitutional when “the facts available to the officer[s] . . . 7
[would] warrant a man of reasonable caution in the belief that 8
the consenting party had authority over the premises” (internal 9
quotation marks omitted)); see also Florida v. Jimeno, 500 U.S. 10
248, 249 (1991). That is, even if a third party lacks actual 11
authority to consent to a search of a particular area, he still 12
may have apparent authority to consent to the search. See, e.g., 13
United States v. Buckner, 473 F.3d 551, 555 (4th Cir. 2007). 14
However, “the Rodriguez apparent authority rule applies [only] to 15

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-13-
mistakes of fact [and] not mistakes of law.” 4 Wayne R. LaFave, 1
Search and Seizure: A Treatise on the Fourth Amendment § 8.3(g), 2
at 175 (4th ed. 2004); see, e.g., United States v. Brown, 961 3
F.2d 1039, 1041 (2d Cir. 1992) (per curiam) (“Rodriguez would not 4
validate, however, a search premised upon an erroneous view of 5
the law. For example, an investigator’s erroneous belief that 6
landladies are generally authorized to consent to a search of a 7
tenant’s premises could not provide the authorization necessary 8
for a warrantless search.” (citation omitted)); see also Koch v. 9
Town of Brattleboro, 287 F.3d 162, 167 & nn.3-4 (2d Cir. 2002). 10
Such, then, was the state of the law when Deputies Andreno 11
and Palmer accompanied Sines into Moore’s study, permitted her to 12
forage in his desk and closet for her belongings, and discovered 13
the drugs. Four years later, however, the Supreme Court decided 14
Georgia v. Randolph, 547 U.S. 103 (2006). In Randolph, the Court 15
held that a search conducted on the basis of one co-tenant’s 16
consent is unreasonable as to a physically present and objecting 17
co-tenant. Id. at 120. In doing so, however, Randolph 18
emphasized that the reasonableness of a consent search is 19
informed by “widely shared social expectations.” Id. at 111. For 20
example, “[a] person on the scene who identifies himself, say, as 21
a landlord or a hotel manager calls up no customary understanding 22
of authority to admit guests without the consent of the current 23
occupant.” Id. at 112; see also id. at 111 (“When someone comes 24

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-14-
to the door of a domestic dwelling with a baby at her hip, . . . 1
she shows that she belongs there, and that fact standing alone is 2
enough to tell a law enforcement officer or any other visitor 3
that if she occupies the place along with others, she probably 4
lives there subject to the assumption tenants usually make about 5
their common authority when they share quarters.”). The Court 6
thus subtly elided the existing distinction between a third 7
party’s actual authority to consent (i.e., Matlock) and his 8
apparent authority to consent (i.e., Rodriguez). Cf. id. at 112 9
(noting an instance “in which even a person clearly belonging on 10
premises as an occupant may lack any perceived authority to 11
consent” (emphasis added)). 12
While the ramifications of Randolph for the Davis rule are 13
not clear, we need not strive to discern them. Under either 14
Davis or Randolph, we see no basis to disturb the district 15
court’s conclusion that Sines lacked sufficient actual authority 16
to consent to the Deputies’ search of Moore’s study. First, 17
under Davis, the law in effect at the time of the search, Sines 18
lacked actual authority to consent to the search of Moore’s study 19
because, though she had obtained physical access to the room by 20
the time the Deputies arrived, she did not have control over the 21
premises. Davis reads Matlock to require that one who asserts 22
that a third party has authority to consent to a search of an 23
area satisfy a conjunctive test: the third party must have both 24

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-15-
access to and some measure of control (or right to exert control) 1
over the area. See Davis, 967 F.2d at 86-87; cf. United States 2
v. Whitfield, 939 F.2d 1071, 1074-75 (D.C. Cir. 1991) 3
(interpreting Matlock as asking whether a third party has access 4
to and makes “mutual use” of an area). But see United States v. 5
Rith, 164 F.3d 1323, 1329 (10th Cir. 1999) (“[T]he . . . test is 6
disjunctive: a third party has authority to consent to a search 7
of property if that third party has either (1) mutual use of the 8
property by virtue of joint access, or (2) control for most 9
purposes over it.”). 10
As a preliminary matter, “we note that no case in this 11
circuit has delimited the requisite ‘access’ necessary to satisfy 12
the first prong of the Davis test.” Ehrlich v. Town of 13
Glastonbury, 348 F.3d 48, 53 (2d Cir. 2003). In the instant 14
case, it is arguable whether Sines possessed the requisite access 15
to Moore’s study. On the one hand, by the time the Deputies 16
arrived, she had already cut the locks on the study door and 17
therefore had physical access to the room. On the other hand, 18
Sines’s access was acquired by force, and we stated in Ehrlich 19
that “we have never adopted as the clear law of this circuit 20
[the] view that access must mean physical access and not legal 21
access.” Id. at 60; see also id. at 54 (noting our lack of 22
“clear precedential guidance . . . on . . . whether some amount 23
of physical force is permissible under the access prong of 24

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-16-
Davis”). Thus, while she had physical access to the study, Sines 1
may have lacked “legal access.” In other cases, we have found 2
the access requirement to be satisfied when the party who 3
consented to the search had a key to the searched area, see 4
United States v. Buettner-Janusch, 646 F.2d 759, 765 (2d Cir. 5
1981), or was the owner of the searched container and could “get 6
into [it] whenever he wanted” despite not having the key, see 7
Davis, 967 F.2d at 87 n.3. These were not the circumstances 8
under which Sines acted. 9
Regardless of whether Sines’s forced access to the study was 10
enough to satisfy the first prong of Davis, she lacked authority 11
to consent to the search because she failed to satisfy the second 12
prong: Sines did not have any real measure of control over the 13
study. First, she had no common authority over the area as she 14
and Moore were not married and did not share ownership of the 15
house. See Davis, 967 F.2d at 87 (“Cleare’s ownership and actual 16
possession of the trunk in his bedroom, coupled with his ready 17
access to it, indicate that, at the very least, he retained 18
common authority over it.”); see also United States v. Backus, 19
349 F.3d 1298, 1304 (11th Cir. 2003) (holding that an estranged 20
wife who was a domestic violence victim and co-owner of a home 21
could consent to a search even though her husband had changed the 22
locks); United States v. Duran, 957 F.2d 499, 505 (7th Cir. 1992) 23
(“[A] spouse presumptively has authority to consent to a search 24

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-17-
of all areas . . . .”); United States v. Brannan, 898 F.2d 107, 1
108 (9th Cir. 1990) (affirming a wife’s actual authority to 2
consent to a search of her home, despite the fact that her 3
husband had changed the locks, when she had left the home due to 4
fear of her husband); United States v. Long, 524 F.2d 660, 661 5
(9th Cir. 1975) (same). 6
Second, Sines did not have a substantial interest in the 7
study, as required by Davis. Her only interest in that room came 8
from her personal belief that some of her belongings were being 9
kept there. Sines’s intuition, standing alone, did not give her 10
a “substantial” interest in the study. While no case in this 11
circuit has yet defined what constitutes a “substantial interest” 12
for purposes of the Davis test, the Supreme Court has stated that 13
[c]ommon authority is . . . not to be implied from the mere 14
property interest a third party has in the property. The 15
authority which justifies the third-party consent does not 16
rest upon the law of property, with its attendant historical 17
and legal refinements, but rests rather on mutual use of the 18
property by persons generally having joint access or control 19
for most purposes, so that it is reasonable to recognize 20
that any of the co-inhabitants has the right to permit the 21
inspection in his own right and that the others have assumed 22
the risk that one of their number might permit the common 23
area to be searched. 24
Matlock, 415 U.S. at 171 n.7 (citations omitted). It would be 25
inconsistent with these principles to define “substantial 26
interest” in terms of a property interest alone, particularly in 27
a case in which the third party lacked common authority and joint 28
access, and in which the property interest itself was purely 29

-- 17 of 29 --

7 There is no evidence that Sines’s personal property was 1
actually being kept in the study; she was unable to find the 2
missing items during her search. 3
-18-
speculative.7
1
In Davis, the court determined that Cleare, the consenting 2
party, had a substantial interest in the searched container based 3
on the fact that “it was his trunk and he kept personal items of 4
some importance in it.” 967 F.2d at 87. But in addition to 5
Cleare’s property interest in the trunk and in the items 6
contained therein -- and consistent with the spirit of Matlock -- 7
the elements of mutual use, joint access, control, and assumption 8
of risk were also present: 9
[Cleare] testified that he owned the footlocker, that he 10
could open it at any time he wished “if [he] had to,” and 11
that he kept various personal items in it, including 12
photographs of present and former girlfriends. Cleare also 13
testified that Content never asked him not to look inside 14
the containers that Content had placed in the footlocker, 15
and that “nothing could have stopped” him from inspecting 16
them. He added that Content never forbade him to show the 17
footlocker or its contents to others. 18
19
Id. at 86 (alteration in original) (footnote omitted). While we 20
do not mean to say that all of these factors must be present for 21
the substantial interest requirement to be met, the fact that 22
none of them was present in this case strongly indicates that 23
Sines did not have a substantial interest in Moore’s study. 24
Finally, Sines did not have permission to gain access to the 25
searched area, as Moore expressly forbade her to enter the study. 26
See Davis, 967 F.2d at 86 (finding valid consent when the 27

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-19-
consenting party was never asked not to look inside the searched 1
containers and never forbidden to show them to others); cf. 2
United States v. Zapata-Tamallo, 833 F.2d 25, 27 (2d Cir. 1987) 3
(per curiam) (concluding that a host may consent to a search of 4
his guest’s bag when the guest failed to show that the bag was 5
“‘obviously’ his”); Buettner-Janusch, 646 F.2d at 765 (“[T]o 6
perform his laboratory duties, Macris was authorized to enter any 7
part of the laboratory and to open any jars of chemicals found 8
there.”); United States v. Perez, 948 F. Supp. 1191, 1200-01 9
(S.D.N.Y. 1996) (noting that the defendant never “prohibited his 10
father from examining the contents of the storage bins kept in 11
the closet and the armoire of [his] bedroom”). Having failed to 12
satisfy both parts of the Davis test, Sines was without authority 13
to consent to a search of the study, and the Deputies therefore 14
cannot rely on consent to argue that the search was reasonable. 15
Under Randolph, the constitutional calculus of determining 16
whether the search was unreasonable might be somewhat different. 17
See 547 U.S. at 111 (“[T]he reasonableness of a search is in 18
significant part a function of commonly held understanding about 19
the authority that co-inhabitants may exercise in ways that 20
affect each other’s interests.”). But we see no common 21
understanding of social practices, as Randolph uses that concept, 22
that could have led the officers to believe that Sines, who 23
admitted to the officers that she had broken the locks on Moore’s 24

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8 The presence of a lock is not dispositive in all cases. It 1
is not certain that, had Moore locked his study only after his 2
altercation with Sines, he could have terminated any preexisting 3
authority on her part to consent to its search. See, e.g., 4
Brannan, 898 F.2d at 108; Long, 524 F.2d at 661. 5
-20-
study and lacked permission to enter it, had authority to consent 1
to a search of the room. Cf. id. at 112 (“Matlock relied on what 2
was usual and placed no burden on the police to eliminate the 3
possibility of atypical arrangements, in the absence of reason to 4
doubt that the regular scheme was in place.” (emphasis added)). 5
A study is commonly thought to be a private place. See 6
Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U. 7
Chi. L. Rev. 47, 62 (1974) (“[W]ithout special information one 8
[might] suppose that husband and wife have independent authority 9
to admit persons to the living room and the kitchen, and probably 10
to the bathroom and bedroom; neither would have authority to 11
admit persons to the other’s study . . . .”). Moore, moreover, 12
locked the door to his study, see United States v. Andrus, 483 13
F.3d 711, 718 (10th Cir. 2007) (“The inquiry into whether the 14
owner . . . has indicated a subjective expectation of privacy 15
traditionally focuses on whether the subject . . . is physically 16
locked.”); United States v. Kinney, 953 F.2d 863, 866 (4th Cir. 17
1992); United States v. Block, 590 F.2d 535, 537 (4th Cir. 1978),8
18
and refused Sines permission to enter, see Rith, 164 F.3d at 1331 19
(noting that “an agreement or understanding between the defendant 20
and the third party that the latter must have permission to enter 21

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-21-
the defendant’s room” would vitiate consent). 1
As Chief Justice Roberts has explained, at a bare minimum, 2
“a person [who] wants to ensure that his possessions will be 3
subject to a consent search only due to his own consent, . . . 4
[may] place these items in an area over which others do not share 5
access and control, [like] . . . a private room.” Randolph, 547 6
U.S. at 135 (Roberts, C.J., dissenting) (third emphasis added); 7
United States v. Morning, 64 F.3d 531, 536 (9th Cir. 1995) (“A 8
defendant cannot expect sole exclusionary authority unless he . . 9
. has a special and private space within the joint residence.”), 10
abrogated by Randolph, 547 U.S. at 108 n.1; Zapata-Tamallo, 833 11
F.2d at 27; United States v. Robinson, 479 F.2d 300, 302 (7th 12
Cir. 1973) (upholding consent when “the defendant [did not] claim 13
exclusive dominion and control over a specific room or portion of 14
a room or particular area of the apartment”). That is precisely 15
what Moore did, and his ability to do so is unaffected by his 16
decision otherwise to share his home with another. 17
With these social expectations operating in the background, 18
and with the specific knowledge that Sines was not permitted to 19
enter the study and had used force to gain access, the Deputies 20
could not validate their warrantless search of Moore’s study on 21
the basis of consent. 22
B. Exigent Circumstances 23
The Deputies also argue that their entry into the study was 24

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-22-
justified because they worried that Moore might arrive and wish 1
to (or already be on the premises prepared to) do violence to 2
Sines. We need not tarry long on this argument. The exigency of 3
a situation may insulate a warrantless search from constitutional 4
attack if “law enforcement agents were confronted with an ‘urgent 5
need’ to render aid or take action.” United States v. McDonald, 6
916 F.2d 766, 769 (2d Cir. 1990) (en banc) (quoting Dorman v. 7
United States, 435 F.2d 385, 391 (D.C. Cir. 1970) (en banc)). 8
See generally Brigham City v. Stuart, 126 S. Ct. 1943, 1947 9
(2006) (“One exigency obviating the requirement of a warrant is 10
the need to assist persons who are seriously injured or 11
threatened with such injury.”). We have explained that the 12
“urgency” of the officers’ need depends on six factors: 13
(1) the gravity or violent nature of the offense with 14
which the suspect is to be charged; (2) whether the 15
suspect “is reasonably believed to be armed”; (3) “a 16
clear showing of probable cause . . . to believe that 17
the suspect committed the crime”; (4) “strong reason to 18
believe that the suspect is in the premises being 19
entered”; (5) “a likelihood that the suspect will 20
escape if not swiftly apprehended”; and (6) the 21
peaceful circumstances of the entry. 22
23
McDonald, 916 F.2d at 769-70 (omission in original). 24
Considering the situation confronted by Deputies Andreno and 25
Palmer in light of these factors (adapted to the circumstances of 26
this case), we do not think that the Deputies had an “urgent 27
need” to enter the study and thus that “exigent circumstances” 28
could justify the search. The Deputies entered Moore’s home 29

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-23-
peacefully and Sines told them that Moore was not there. Cf. 1
Tierney v. Davidson, 133 F.3d 189, 197 (2d Cir. 1998) (“It was 2
reasonable for Davidson to believe that someone inside had been 3
injured or was in danger, that both antagonists remained in the 4
house, and that this situation satisfied the exigent 5
circumstances exception.” (emphasis added)). The Deputies stayed 6
with Sines for “quite a while” and at no time did they instruct 7
Sines to hurry, nor did they look elsewhere in the home for 8
Moore. 9
Moreover, if the Deputies had suspected that Moore might be 10
in the house, they would only have been justified in conducting a 11
protective sweep of those spaces “where [he] m[ight] [have] 12
be[en] found.” Maryland v. Buie, 494 U.S. 325, 335 (1990). 13
There is no suggestion that anyone thought Moore might have 14
concealed himself in the erstwhile locked study. 15
C. Conclusion 16
For the foregoing reasons, we think that the Deputies’ 17
search of Moore’s study was unreasonable and violated the Fourth 18
Amendment. Sines lacked the authority to consent to the 19
Deputies’ search -- both because she did not have the requisite 20
access to and control over the study and because the particulars 21
of her relationship with Moore were not such that society would 22
expect her to have common authority over the study. Moreover, 23
the Deputies had no urgent need to enter the study, as Moore was 24

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-24-
not yet on the premises, and there was no indication that his 1
arrival was imminent. 2
II. Lack of a Clearly Established Right 3
We turn next to the Deputies’ argument that, even if they 4
violated Moore’s constitutional rights, they are entitled to 5
qualified immunity because the law regarding third-party consent 6
to access in a shared dwelling was not clearly established at the 7
time of the search. If, as here, “a constitutional right would 8
have been violated on the facts alleged,” Saucier, 533 U.S. at 9
200, the next inquiry is “whether the right was clearly 10
established,” id. The Supreme Court has clarified that “[t]he 11
relevant, dispositive inquiry in determining whether a right is 12
clearly established is whether it would be clear to a reasonable 13
officer that his conduct was unlawful in the situation he 14
confronted.” Id. at 202; see also Demoret v. Zegarelli, 451 F.3d 15
140, 148-49 (2d Cir. 2006). Normally, it is only the “plainly 16
incompetent or those who knowingly violate the law” -- those who 17
are not worthy of the mantle of office -- who are precluded from 18
claiming the protection of qualified immunity. Malley v. Briggs, 19
475 U.S. 335, 341 (1986). 20
The district court concluded that the law governing consent 21
searches “was clearly established at all times relevant hereto.” 22
Moore, 2006 WL 2008712, at *8. It further held that “reasonable 23
officers could only conclude that [neither consent nor] exigent 24

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-25-
circumstances” justified the Deputies’ search of Moore’s study. 1
Id. at *11. We disagree. 2
For constitutional suits like this one to deter misconduct, 3
without also deterring citizens from taking jobs in the public 4
sector, police officers must be able to understand the legal 5
constraints on their conduct. See Back v. Hastings on Hudson 6
Union Free Sch. Dist., 365 F.3d 107, 129 (2d Cir. 2004) (“The 7
compromise between remedy and immunity that we have chosen turns 8
critically upon notice.”). See generally Hope v. Peltzer, 536 9
U.S. 730, 739-40 (2002). Thus, it is not enough to say that it 10
was clearly established that a warrantless search of an area is 11
unconstitutional absent probable cause or the voluntary consent 12
of a person with authority to consent to such a search. “To be 13
clearly established, a right must have been recognized in a 14
particularized rather than a general sense.” Sira v. Morton, 380 15
F.3d 57, 81 (2d Cir. 2004). Indeed, “[t]he question is not what 16
a lawyer would learn or intuit from researching case law, but 17
what a reasonable person in the defendant’s position should know 18
about the constitutionality of the conduct.” McCullough v. 19
Wyandanch Union Free Sch. Dist., 187 F.3d 272, 278 (2d Cir. 20
1999). 21
The law applying and interpreting Davis was not clearly 22
established at the time of the search. As we noted earlier, this 23
court has never adequately defined the meaning of “access” under 24

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-26-
Davis. See Ehrlich, 348 F.3d at 53. Nor have we ever passed on 1
how “substantial” an interest must be to vest a third party with 2
authority to consent to a search over an area in which she has 3
such an interest. And, indeed, it is not even clear what metric 4
we would use to measure substantiality, for it surely cannot 5
depend on the presence or absence of a property right in an area, 6
see Randolph, 547 U.S. at 110-11. Finally, the difference 7
between “access” and “permission to gain access” is also obscure. 8
For instance, the dictionary definition of “access” given by the 9
district court includes “permission to approach.” See Webster’s 10
Third International Dictionary 11 (1981) (defining access to 11
include “permission, liberty, or ability to enter”). 12
Thus, it was not clear at the time of the search whether the 13
physical access Sines gained by forcibly cutting off the locks to 14
the study satisfied the access requirement of Davis. The fact 15
that Davis distinguishes between access and permission to gain 16
access -- part 2(c) of the test -- could suggest that even though 17
Sines’s access was improperly obtained, it nevertheless 18
constituted access within the meaning of the first prong. 19
However, because we have never decided whether physical force is 20
permissible under the access prong, Ehrlich, 348 F.3d at 54, a 21
reasonable officer could not be sure that Sines did not have the 22
requisite access to the study, see also id. at 60 (“Since the 23
issue before us is the existence of qualified immunity, we need 24

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-27-
not delimit the specific boundaries of the access requirement.”). 1
Moreover, based on the ambiguity in the law, an officer could 2
have reasonably believed that Sines’s suspicion that Moore had 3
hidden her personal effects in his study was sufficient to 4
constitute a substantial interest that could validate her 5
consent. And “[i]f the officer’s mistake as to what the law 6
requires is reasonable, . . . the officer is entitled to the 7
immunity defense.” Saucier, 533 U.S. at 205. 8
In concluding that, for purposes of qualified immunity, the 9
Deputies could have reasonably believed that Sines had authority 10
to consent to the search, we note that this analysis is distinct 11
from that in Part I.A., in which we concluded that, for purposes 12
of determining whether there had been a constitutional violation, 13
common understanding could not have supported a belief that Sines 14
had authority to consent. The latter concerns the question of 15
whether the search itself was unreasonable, in violation of the 16
Fourth Amendment (i.e., the first part of the qualified immunity 17
test), based on common social understanding as clarified in 18
Randolph; the former concerns the question of whether the 19
officers’ belief in the lawfulness of their conduct was 20
unreasonable, thereby precluding a qualified immunity defense 21
(i.e., the second part of the qualified immunity test), based on 22
the state of the existing law, which of course pre-dated 23
Randolph. In Anderson v. Creighton, a warrantless search case, 24

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-28-
the Supreme Court highlighted the distinction between these two 1
analyses and noted that it was possible for officers to have 2
conducted an unreasonable search based on a reasonable mistaken 3
belief. 483 U.S. 635, 643-44 (1987) (suggesting that it is 4
possible “to say that one ‘reasonably’ acted unreasonably”); see 5
also Saucier, 533 U.S. at 202 (“In Anderson, . . . we rejected 6
the argument that there is no distinction between the 7
reasonableness standard for warrantless searches and the 8
qualified immunity inquiry.”). 9
Thus, in this case, we conclude that the Deputies acted 10
unreasonably when they searched the study because “no . . . 11
authority [to consent] could sensibly be suspected.” Randolph, 12
547 U.S. at 112. However, we also conclude that because the law 13
was unclear, the Deputies could reasonably have believed that 14
Sines had access and a substantial interest and therefore had 15
authority to consent to the search. Cf. Saucier, 533 U.S. at 203 16
(“We acknowledged that there was some ‘surface appeal’ to the 17
argument that, because the Fourth Amendment’s guarantee was a 18
right to be free from ‘unreasonable’ searches and seizures, it 19
would be inconsistent to conclude that an officer who acted 20
unreasonably under the constitutional standard nevertheless was 21
entitled to immunity because he ‘reasonably’ acted unreasonably. 22
This superficial similarity, however, could not overcome . . . 23
our history of applying qualified immunity analysis to Fourth 24

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-29-
Amendment claims against officers.” (internal quotation marks and 1
citation omitted)). 2
Because we believe that, at the time of the search, the law 3
was not clearly established as to whether Sines had authority to 4
consent to a search of the study, Deputies Andreno and Palmer are 5
entitled to qualified immunity. We therefore do not need to 6
decide whether the law governing searches purportedly justified 7
by the exigency of the circumstances was clearly established at 8
the time the Deputies searched Moore’s study. 9
CONCLUSION 10
For the foregoing reasons, the judgment of the district 11
court is REVERSED. The case is REMANDED to the district court so 12
that it may enter summary judgment in defendants’ favor. 13
14

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