Winfield, et al. v. Trottier

11-4404-cv
Winfield, et al. v. Trottier
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2012 5
6
(Argued: October 5, 2012 Decided: March 6, 2013) 7
8
Docket No. 11-4404-cv 9
10
- - - - - - - - - - - - - - - - - - - -x 11
12
MARIE WINFIELD and JASON WINFIELD, 13
14
Plaintiffs-Appellees, 15
16
- v.- 17
18
DANIEL TROTTIER, 19
20
Defendant-Appellant, 21
22
AIMEE NOLAN, STATE OF VERMONT, 23
24
Defendants. 25
26
- - - - - - - - - - - - - - - - - - - -x 27
28
Before: JACOBS, Chief Judge, POOLER and HALL, 29
Circuit Judges. 30
31
A police officer appeals the denial of qualified 32
immunity by the United States District Court for the 33
District of Vermont in a claim under 42 U.S.C. § 1983 34
alleging that he violated the Fourth Amendment rights of a 35
motorist and her passenger when, while searching her car 36
with her consent during a traffic stop, he read a piece of 37
her mail. We reverse. 38

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MICHAEL B. KIMBERLY, Mayer Brown 1
LLP, Washington, DC for 2
Appellees. 3
4
MEGAN J. SHAFRITZ, Assistant 5
Attorney General, (Jana M. 6
Brown on the brief) for, William 7
H. Sorrell, Attorney General for 8
the State of Vermont for 9
Appellant. 10
11
DENNIS JACOBS, Chief Judge: 12
Daniel Trottier (“Trottier”), a Vermont State Police 13
officer, appeals from an order entered in the United States 14
District Court for the District of Vermont (Reiss, J.), 15
denying his motion for qualified immunity in a claim brought 16
by motorist Marie Winfield (“Winfield”) under 42 U.S.C. § 17
1983, alleging that Trottier violated her Fourth Amendment 18
rights when, while searching her car with her consent during 19
a traffic stop, he read a piece of her mail. 20
At issue is the scope of Winfield’s consent to the 21
search of her car, which is determined by looking at what a 22
reasonable person would have understood by the exchange 23
between Trottier and Winfield . We conclude that, while the 24
scope of Winfield’s consent was not limited to a search for 25
any particular object of contraband, it did not extend to 26
the text of her mail. However, since this right was not 27
clearly established at the time of the search, Trottier is 28
entitled to qualified immunity. We therefore reverse. 29
2

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BACKGROUND 1
The district court found that the following facts were 2
undisputed. On May 26, 2007, Winfield was driving north on 3
Interstate 89 in Vermont, en route to visit her father in 4
Montreal. Trottier, a state trooper, stopped her for 5
driving twenty miles per hour over the limit, and was 6
inspired to search the car by certain things he deemed 7
suspicious: The passenger, Winfield’s son Jason, avoided 8
making eye contact with him; and Winfield was eating a 9
Powerbar “in what he regarded as a hurried manner.” 10
Winfield v. Trottier, No. 5:08-cv-278, 2011 WL 4442933, at 11
*1 (D. Vt. Sept. 21, 2011). 12
As Trottier was waiting for verification of Winfield’s 13
identity, he approached the car and asked, “Ms. Winfield, 14
you don’t have to if you don’t want to, but while we’re 15
waiting, would you mind coming back here for a minute 16
[behind the car] and talk[ing] to me for a second?” She got 17
out and walked with Trottier to the back of her car while 18
State Trooper Aimee Nolan arrived on the scene, as backup. 19
The following exchange ensued: 20
TROTTIER: Listen, is there anything in 21
there I should know about? You seemed awfully 22
nervous when I was talking with you. . . . Your 23
hand was shaking and you’re--you had, like, a leg 24
tremor going on. No? 25
3

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WINFIELD: Not that I know of. 1
TROTTIER: Oh, Okay. Not that you know of, 2
or there’s nothing? It just kind of, you know, 3
piqued my interest there. 4
WINFIELD: Really? 5
TROTTIER: Because when I was talking with 6
you, you were shaking; your voice was shaking. 7
Winfield explained that she was “probably tired” 8
because her daughter’s high school graduation was the 9
previous night. The conversation continued: 10
TROTTIER: Okay. Okay. There’s nothing in 11
there I should know about is there? No guns or 12
money? 13
WINFIELD: You can look if you want. 14
TROTTIER: Oh you don’t mind? Do you mind? 15
No--no large sums of money in there or--no? Okay. 16
WINFIELD: Be my guest. 17
TROTTIER: Okay. 18
WINFIELD: You can look. 19
TROTTIER: Okay. Here. Hold on one 20
second. 21
WINFIELD: Inside my trunk? 22
TROTTIER: Okay. 23
WINFIELD: I don’t know [inaudable]-- 24
TROTTIER: Here. Do me a favor, okay? 25
WINFIELD: I don’t have anything. 26
TROTTIER: What’s that? 27
WINFIELD: No, I don’t have anything in 28
there. My-- 29
TROTTIER: Okay. Oh, just stay over here 30
for a second. I don’t want you to get run over. 31
Do you mind? 32
WINFIELD: I was just going to pop my 33
trunk. 34
TROTTIER: Oh, that’s okay. Do you mind if 35
I look through--do--do you mind? You don’t mind? 36
Okay. Do me a favor. Stand over here for me. 37
You don’t have anything on you we should know 38
about, do you? No guns or bombs or anything like 39
that? 40
4

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WINFIELD: [Inaudible.] 1
TROTTIER: No? Okay. 2
Id. at *2-3. 3
After patting down Jason (with his consent), Trottier 4
searched the car. Trottier, who admits he was not looking 5
for anything in particular, found an envelope addressed 6
either to or from a court, opened it, 1 and read what was 7
inside. It was a court document pertaining to the arrest of 8
Winfield’s husband “for possession,” and a letter that 9
Winfield had written to a judge. Id. at *3 n.4. After 10
finishing the search and finding nothing, he issued a 11
speeding citation and the Winfields proceeded on their way. 12
The Winfields sued, alleging, inter alia, violations of 13
the Fourth Amendment’s prohibition of unreasonable searches 14
and seizures. The district court concluded that “no 15
reasonable understanding of the exchange between Ms. 16
Winfield and Trooper Trottier could be construed as consent 17
for Trooper Trottier to read Ms. Winfield’s mail, regardless 18
of to whom or from whom [the mail] was addressed.” Id. at 19
*10. The court denied qualified immunity because “[i]t was 20
1 The record on appeal does not indicate whether
Trottier unsealed the envelope. The district court noted,
in its findings of undisputed facts, that Trottier simply
“removed from its envelope and read” the document inside.
Id. at *3.
5

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well-established at the time of the search that ‘[i]t is a 1
violation of a suspect’s Fourth Amendment rights for a 2
consensual search to exceed the scope of the consent 3
given.’” Id. at *11 (quoting United States v. McWeeney, 454 4
F.3d 1030, 1034 (9th Cir. 2006)) (second alteration in 5
original)). 6
7
DISCUSSION 8
The Court reviews de novo a decision on a motion for 9
summary judgment. Mario v. P & C Food Mkts., Inc., 313 F.3d 10
758, 763 (2d Cir. 2002); see also Miller v. Wolpoff & 11
Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). Summary 12
judgment is appropriate if there is no genuine dispute as to 13
any material fact and the moving party is entitled to 14
judgment as a matter of law. Miller, 321 F.3d at 300. In 15
assessing a motion for summary judgment, the Court is 16
“required to resolve all ambiguities and draw all 17
permissible factual inferences in favor of the party against 18
whom summary judgment [was granted].” Terry v. Ashcroft, 19
336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks 20
omitted). 21
22
6

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I 1
“Qualified immunity protects officials from liability 2
for civil damages as long as ‘their conduct does not violate 3
clearly established statutory or constitutional rights of 4
which a reasonable person would have known.’” Gilles v. 5
Repicky, 511 F.3d 239, 243 (2d Cir. 2007) (quoting Harlow v. 6
Fitzgerald, 457 U.S. 800, 818 (1982)). In deciding 7
qualified immunity, courts ask whether the facts shown [i] 8
“make out a violation of a constitutional right,” and [ii] 9
“whether the right at issue was clearly established at the 10
time of defendant’s alleged misconduct.” Pearson v. 11
Callahan, 555 U.S. 223, 232 (2009) (internal quotation marks 12
omitted). 13
To be clearly established, “[t]he contours of the right 14
must be sufficiently clear that a reasonable official would 15
understand that what he is doing violates that right.” 16
Anderson v. Creighton, 483 U.S. 635, 640 (1987). In this 17
way, qualified immunity shields official conduct that is 18
“‘objectively legally reasonable in light of the legal rules 19
that were clearly established at the time it was taken.’” 20
X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999) 21
(alterations omitted) (quoting Anderson, 483 U.S. at 639); 22
7

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see also Taravella v. Town of Wolcott, 599 F.3d 129, 134-35 1
(2d Cir. 2010). 2
3
II 4
Plaintiffs challenge appellate jurisdiction on the 5
ground that the qualified immunity inquiry in this case 6
turns on a question of fact: the reasonableness 7
determination as to the scope of Winfield’s consent. 8
We have appellate jurisdiction over this interlocutory 9
appeal. “[A] district court’s denial of a claim of 10
qualified immunity, to the extent that it turns on an issue 11
of law, is an appealable ‘final decision’ within the meaning 12
of 28 U.S.C. § 1291 notwithstanding the absence of a final 13
judgment.” Mitchell v. Forsyth, 472 U.S. 511, 529 (1985) 14
(emphasis added). An appealable order therefore cannot turn 15
on a district court decision as to “what occurred, or why an 16
action was taken or omitted, but [must related to] disputes 17
about the substance and clarity of pre-existing law.” Ortiz 18
v. Jordan, --- U.S. ---, 131 S. Ct. 884, 893 (2011); see 19
also Britt v. Garcia, 457 F.3d 264, 271-72 (2d Cir. 2006). 20
21
22
8

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A 1
“The standard for measuring the scope of a suspect’s 2
consent under the Fourth Amendment is that of ‘objective’ 3
reasonableness--what would the typical reasonable person 4
have understood by the exchange between the officer and the 5
suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991). 6
As there are no disputed facts in this case, 7
Plaintiffs’ argument is essentially that an appeals court 8
lacks jurisdiction over an interlocutory appeal that turns 9
on a determination of reasonableness. But in other 10
contexts, courts hold that reasonableness may be a question 11
of law when the facts are undisputed. See, e.g., Kent v. 12
Katz, 312 F.3d 568, 577 (2d Cir. 2002) (“[W]hen the 13
defendant accepts . . . the plaintiff’s version of the 14
facts, the defendant may immediately appeal the denial of [a 15
summary judgment] motion because the objective 16
reasonableness of the undisputed actions may then be 17
susceptible to resolution as a matter of law.” (emphasis 18
added) (citing Salim v. Proulx, 93 F.3d 86, 91 (2d Cir. 19
1996))); Huang v. Attorney Gen., 620 F.3d 372, 385 (3d Cir. 20
2010) (“[I]n the context of qualified immunity for 21
constitutional torts, the reasonableness of a state actor’s 22
9

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conduct based on undisputed facts is subject to de novo 1
review as a question of law.” (emphasis added)); Vaughn v. 2
Ruoff, 253 F.3d 1124, 1128 (8th Cir. 2001) (“If the material 3
predicate facts are undisputed, the reasonableness inquiry 4
is a question of law.”). 5
Plaintiffs fail to cite a single case holding that an 6
appellate court lacks jurisdiction to review a ruling on 7
qualified immunity when the facts are undisputed. 2 Instead, 8
they cite cases such as Hatheway v. Thies, 335 F.3d 1199, 9
1204 (10th Cir. 2003), in which the question was whether 10
certain facts were disputed, and Copar Pumice Co. v. Morris, 11
639 F.3d 1025, 1027 (10th Cir. 2011), in which “[t]he 12
parties provide[d] distinctly differing accounts of the 13
ensuing encounter.” 14
15
2 Plaintiffs cite cases in which the scope of
consent to search is a question of fact reviewed for clear
error. See United States v. Gandia, 424 F.3d 255, 265 (2d
Cir. 2005); United States v. Garrido-Santana, 360 F.3d 565,
570 (6th Cir. 2004); United States v. Rosborough, 366 F.3d
1145, 1150 (10th Cir. 2004). Gandia, the only Second
Circuit case plaintiffs cite, turned on facts that were
disputed. 424 F.3d at 265. Moreover, these cases were
criminal cases in which the court set out the standard of
review without touching on the question presented here,
whether there is appellate jurisdiction to review a denial
of qualified immunity involving the scope of consent.
10

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In this case involving no disputed facts, we have 1
appellate jurisdiction, under Mitchell v. Forsyth, 472 U.S. 2
511 (1985), to decide whether there was a violation of a 3
constitutional right. 4
B 5
We also have appellate jurisdiction to decide whether 6
the right at issue was “clearly established.” See Moore v. 7
Andreno, 505 F.3d 203, 207 (2d Cir. 2007) (“Nevertheless, 8
our appellate jurisdiction over this case is not in doubt. 9
The district court’s holding that the law governing 10
third-party consent searches was clearly established is a 11
conclusion of law and is thus immediately appealable.”); 12
Salim, 93 F.3d at 89 (finding it “easy to apply” Mitchell v. 13
Forsyth “whenever a defendant’s interlocutory appeal 14
challenges a denial of a qualified immunity defense on the 15
ground that the district court erred in ruling that the law 16
the defendant is alleged to have violated was clearly 17
established”). 18
19
III 20
Courts may “exercise their sound discretion in deciding 21
which of the two prongs of the qualified immunity analysis 22
11

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should be addressed first in light of the circumstances in 1
the particular case at hand.” Pearson v. Callahan, 555 U.S. 2
223, 236 (2009). Here, we analyze both because it is 3
“‘difficult to decide whether [the] right [in this case] is 4
clearly established without deciding precisely what the 5
existing constitutional right happens to be.’” Id. (quoting 6
Lyons v. Xenia, 417 F.3d 565, 581 (6th Cir. 2005) (Sutton, 7
J., concurring)). We consider each qualified immunity 8
inquiry in turn. 9
A 10
The Fourth Amendment is not offended by a warrantless, 11
suspicionless search to which a suspect consents. Florida 12
v. Jimeno, 500 U.S. 248, 250-51 (1991). In general, “an 13
individual who consents to a search of his car should 14
reasonably expect that readily-opened, closed containers 15
discovered inside the car will be opened and examined.” 16
United States v. Snow, 44 F.3d 133, 135 (2d Cir. 1995). 17
“A suspect may of course delimit as he chooses the 18
scope of the search to which he consents.” Jimeno, 500 U.S. 19
at 252. To determine the parameters of consent, we ask 20
“what would the typical reasonable person have understood by 21
the exchange between the officer and the suspect?” Id. at 22
251. 23
12

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“The scope of a search is generally defined by its 1
expressed object.” Id. In Jimeno, a police officer who 2
believed he overheard the defendant arranging an illegal 3
drug transaction over a public telephone followed the 4
defendant’s car and pulled him over to give him a ticket 5
when he made an illegal turn. Id. The officer then 6
expressed his suspicion and asked, and was granted, 7
permission to search the car for drugs. Id. at 249-50. A 8
brown paper bag on the floor of the car was opened and 9
yielded cocaine. Id. at 250. The Supreme Court held that 10
the search was lawful: If a suspect’s “consent would 11
reasonably be understood to extend to a particular 12
container, the Fourth Amendment provides no grounds for 13
requiring a more explicit authorization.” Id. at 252. 14
Here, Winfield’s consent was not limited to a search 15
for guns or money because Trottier’s full question did not 16
convey any “expressed object” of the search: “There’s 17
nothing in there I should know about is there? No guns or 18
money?” The open-ended question reached “anything” he 19
should “know about,” of which guns and money were examples. 20
A typical reasonable person would not think that Winfield’s 21
consent was limited to places that could hold guns or money. 22
Winfield’s consent authorized a search for drugs or smuggled 23
13

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cigarettes or child pornography as things Trottier should 1
“know about,” even in places that could contain neither guns 2
nor large sums of money. This case is nothing like Jimeno; 3
Trottier did not tell Winfield that he was looking for (or 4
suspected she had) any particular kind of contraband. 3
5
Nevertheless, Winfield’s consent did not arguably 6
extend to Trottier’s reading her mail. He did not, for 7
example, get specific consent to search for evidence of 8
extortion by mail or securities fraud. The Fourth Amendment 9
specifically protects “[t]he right of the people to be 10
secure in their . . . papers.” U.S. Const. amend. IV. 11
Reading a person’s personal mail is a far greater intrusion 12
than a search for contraband because it can invade a 13
person’s thoughts. See United States v. Dichiarinte, 445 14
3 Winfield arguably limited the scope of her consent
to the trunk of the car. She repeatedly referred to her
trunk during her interaction with Trottier. Moreover,
Trottier asked Winfield, “there’s nothing in there?” while
standing with her at the rear of her car. See United States
v. Neely, 564 F.3d 346, 349-51 (4th Cir. 2009) (concluding
that scope of consent was impliedly limited to trunk of car
based on surrounding circumstances). We need not decide the
issue because even if Winfield arguably limited her consent
in this way, a reasonable officer in Trottier’s place could
believe that the scope was not so limited. See Taravella v.
Town of Wolcott, 599 F.3d 129, 134-45 (2d Cir. 2010) (“[T]he
qualified immunity defense also protects an official if it
was objectively reasonable for him at the time of the
challenged action to believe his acts were lawful.”
(internal quotation marks omitted)).
14

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F.2d 126, 130 n.4 (7th Cir. 1971) (“The fact that the 1
defendant submitted to a degree of intrusion upon his 2
privacy by permitting the agents to enter his home and 3
rummage through his personal property does not mean that the 4
much greater intrusion on his privacy resulting from 5
government agents’ reading his personal papers must 6
automatically be allowed.”). Given this greater intrusion, 7
the typical reasonable person would not assume that consent 8
to a general search of a car for contraband would include 9
consent to read personal papers. Once Trottier opened the 10
envelope and discovered neither large sums of money nor 11
contraband, 4 he should have moved on to search the rest of 12
the car. Trottier exceeded the scope of Winfield’s consent 13
when he read the letter. 14
Trottier argues that he read her mail because he 15
thought it might contain evidence of a parole or probation 16
violation. That is a conceivable rationale for reading 17
mail, just as Trottier might have perused love letters for 18
evidence of statutory rape, or brokerage receipts for 19
evidence of insider trading. But the issue is whether a 20
reasonable person would believe that the consent given by 21
4 We assume without deciding that the envelope could
have contained contraband.
15

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Winfield authorized such a search for such a purpose. We 1
think not. And Trottier cites no persuasive authority in 2
his support.5
3
“[T]he ultimate touchstone of the Fourth Amendment is 4
‘reasonableness.’” Brigham City, Utah v. Stuart, 547 U.S. 5
398, 403 (2006). A typical reasonable person would not 6
assume that Winfield gave Trottier consent to read her 7
personal mail. Therefore, Trottier violated Winfield’s 8
Fourth Amendment right to be free from unreasonable 9
searches. 10
5 We are unpersuaded by the one case holding that
generalized consent to search an area grants police the
authority to read documents found in that area. United
States v. De La Rosa, 922 F.2d 675, 679 (11th Cir. 1991).
The rest are easily distinguishable. In United States v.
Kwan, No. 02 CR. 241, 2003 WL 21180401, at *6 (S.D.N.Y. May
20, 2003), the defendant authorized the police to “look
around,” knowing they were investigating a possible theft of
confidential documents. Id. at *1; cf. Jimeno, 500 U.S. at
252. Moreover, the court focused on whether Kwan had given
the agents consent to search in his desk, not read his
papers. Id. at *6.
The search in United States v. Vaneenwyk was a lawful
search incident to arrest; so the discussion as to scope of
consent was dicta. 206 F. Supp. 2d 423, 425 (W.D.N.Y.
2002).
In United States v. Reyes, 922 F. Supp. 818, 822
(S.D.N.Y. 1996), and United States v. Galante, No. 94 Cr.
633, 1995 WL 507249, at *2 (S.D.N.Y. Aug. 25, 1995), the
officers read no personal papers; they searched the digital
memory of pagers and cell phones found in a car they had
consent to search. See Smith v. Maryland, 442 U.S. 735,
745-46 (1979) (holding that defendants have no legitimate
expectation o f privacy in numbers they dialed or numbers
that dialed them).
16

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B 1
Trottier is entitled to qualified immunity if the right 2
he violated was not “clearly established” at the time of the 3
events at issue. Saucier v. Katz, 533 U.S. 194, 201 (2001). 4
“The relevant, dispositive inquiry in determining whether a 5
right is clearly established is whether it would be clear to 6
a reasonable officer that his conduct was unlawful in the 7
situation he confronted.” Id. at 202. 8
We must first determine “the level of generality at 9
which the relevant ‘legal rule’ is to be identified.” 10
Anderson v. Creighton, 483 U.S. 635, 639 (1987). To do so, 11
we should “‘balance . . . the interests in vindication of 12
citizens’ constitutional rights and in public officials’ 13
effective performance in their duties.’” Id. (quoting 14
Davis v. Scherer, 468 U.S. 183, 195 (1984)). The right must 15
be defined “in a more particularized, and hence more 16
relevant, sense: The contours of the right must be 17
sufficiently clear that a reasonable official would 18
understand that what he is doing violates that right.” Id. 19
at 640. 20
The district court defined the right at a level so 21
general as to be “insufficiently clear”: “‘[I]t is a 22
17

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violation of a suspect’s Fourth Amendment rights for a 1
consensual search to exceed the scope of the consent 2
given.’” Winfield v. Trottier, No. 5:08-cv-278, 2011 WL 3
4442933, at *11 (D. Vt. Sept. 21, 2011) (alteration in 4
original) (quoting United States v. McWeeney, 454 F.3d 1030, 5
1034 (9th Cir. 2006)). 6
The right at issue is properly stated as follows: It is 7
a Fourth Amendment violation when a police officer reads a 8
suspect’s private papers, the text of which is not in plain 9
view, while conducting a search authorized solely by the 10
suspect’s generalized consent to search the area in which 11
the papers are found. No prior case in the Second Circuit 12
has so held. Accordingly, Trottier’s actions were 13
“‘objectively legally reasonable in light of the legal rules 14
that were clearly established at the time it was taken,’” 15
X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999) 16
(alterations omitted) (quoting Anderson, 483 U.S. at 639), 17
and he is entitled to qualified immunity. 18
* * * 19
The district court’s decision denying Trottier’s motion 20
for summary judgment is reversed and the case is remanded to 21
the district court with instructions to enter judgment for 22
Trottier on the ground of qualified immunity. 23
18

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