The U.S. Supreme Court will not hear the appeal of a lawsuit brought against a Botetourt County deputy three years ago when he entered a Cloverdale home without a search warrant while looking for a teenage girl with the girl’s stepfather.

On Monday, the court denied the petition for a writ of certiorari that was filed in December by Mark J. Hunsberger and his wife Cheryl A. Hunsberger.

The Hunsbergers had asked the Supreme Court to review a split decision by the U.S. Fourth Circuit Court of Appeals that confirmed a three-judge panel’s ruling that Sgt. J.A. Wood did not violate the Hunsbergers’ Fourth Amendment rights against an unreasonable search.

The three-judge panel with the U.S. Fourth Circuit Court of Appeals in Richmond made that ruling last summer, then the Hunsbergers asked the whole Court of Appeals to hear their arguments. The judges, in a 14-page document, ruled 5-4 against the whole court rehearing the case. The Hunsbergers appealed that decision to the Supreme Court.

The federal appeals court panel that made the ruling issued a 17-page brief written by Judge J. Harvie Wilkinson in July. The two other judges on that panel joined in the decision that actually reversed an earlier ruling by Judge Samuel G. Wilson of the U.S. District Court for the Western District of Virginia.

The civil action arose out of Wood’s entry without a search warrant into the Hunsbergers’ home when he was looking for a 16-year-old girl he and the girl’s stepfather believed may have been in the home on February 2, 2007.

Wood’s attorney argued that the deputy’s entry into the home was based on the reasonable belief that community caretaker and emergency exceptions justified a warrantless entry.

The appeals court disagreed that the search was reasonable based on the community caretaker exception, but did agreed that Wood was reasonable in entering the home without a warrant because of the circumstances leading up to when he entered the home looking for the 16-year-old girl.

When the full court of appeals was asked to hear the case as en banc, Judge Diana Gribbon Motz wrote the dissenting opinion and was adamant that the whole court of appeals should hear the case, or the case should go before the U.S. Supreme Court where it could decide if the Hunsbergers’ rights were violated and monetary damages were warranted.

Judge Wilkinson wrote the opinion for the majority of the appeals court, reiterating what he’d written in the three-judge panel’s ruling and adding, “I believe the panel’s judgment to be quite correct and fully consistent with the Supreme Court’s often repeated objective of not subjecting officers making difficult discretionary judgments to monetary liability and retrospective relief.”

According to court documents, Wood entered the home with the girl’s stepfather, William Blessard, following. Wood had gotten no response to ringing the doorbell, knocking on another door or the stepfather calling the girl’s cell phone even though the deputy believed there were people in the house. While searching the house, he went into two upstairs bedrooms where he came across one of the Hunsbergers’ sons, and in another the Hunsbergers’ then 10-year-old daughter.

The Hunsbergers were in another bedroom when they said they heard their daughter scream and that’s when they learned the deputy was in the house.

The incidents leading up to that point started when deputies were called to the Hunsbergers’ home by a neighbor earlier that evening. The neighbor believed the Hunsbergers were out of town and was concerned about activity at the house. Deputies, including Wood, responded, talked to the neighbor but saw nothing suspicious.

They were called again by the neighbor just after midnight after there was more activity at the Hunsberger home.

Wood and the other deputy responded again and again talked to the neighbor. There were three vehicles parked on the street and partially blocking the road, none of which belonged to the Hunsbergers or neighbors.

The deputies rang the Hunsbergers’ doorbell a number of times to get the owners to move the cars but got no answer. Lights in the house also were turned off when they approached the house.

The deputies wound up contacting the car owners by phone, and one was Blessard, who arrived first. He said his stepdaughter had the car but was supposed to be staying at another friend’s house. He did not know why her car was there and did not know the Hunsbergers.

According to court documents, Blessard called his stepdaughter’s cell phone several times, but she did not answer. He became worried for the welfare of his stepdaughter and Wood suggested they see if anyone would come to the Hunsberger home’s door if they rang the doorbell.

Walking towards the front door, they passed the garage, when Wood heard something being knocked over. Wood stepped inside the garage and then heard the door that connected the garage to the house’s basement shut and lock.

Blessard followed Wood into the garage, walked down the steps to the basement door, knocked repeatedly, and shouted his stepdaughter’s name. No one came to the door, and Blessard’s apprehensions rose, according to court documents.

Wood then approached the door inside the garage that opened into the first floor of the home. He discovered it was unlocked.

“The series of strange happenings had increased Wood’s fears of vandalism as well as his concern for the welfare of Blessard’s stepdaughter,” the appeals court panel’s ruling said. At that point, Wood decided to enter the home.

“Wood proceeded into the kitchen area and loudly announced that he was from the sheriff’s office and that anyone in the home who was hiding should reveal himself.

The Hunsbergers argued that Wood violated the Constitution when he entered the first floor of the Hunsberger home from the garage, the appeals court decision says, so it is the circumstances at that time that are relevant to whether his entry was justified.

“We believe that the objective circumstances at the time of Wood’s entry would cause a reasonable officer to believe that there was an emergency requiring prompt entry,” the ruling says. “First, the circumstances indicated the strong possibility of an unauthorized intruder in the home…. (the) Hunsbergers’ neighbor had said that she thought the Hunsbergers were out of town.

“There appeared to be someone inside the home who wished to avoid contact with the police; when the officers first arrived, someone in the house turned the lights off, and then later the open door in the garage suggested that someone had fled the home while the officers were at the front door. Three cars not belonging to the Hunsbergers were parked in front of the house. No one came to the front door when the officers rang the doorbell, and no one answered when Wood and Blessard knocked on the basement door repeatedly,” the ruling continued.

“Furthermore, a vacant home in the neighborhood had recently burned down as the apparent result of unauthorized use. All of these facts gave rise to an objectively reasonable belief that vandalism might be taking place in the home.

“It is true that police officers need more than a slight suspicion that property is being harmed to justify a warrantless entry. For example, an open door alone does not create a reasonable belief that a burglary is taking place. But here there were numerous indications to justify the belief that someone was in the Hunsberger home who was not supposed to be there.

“Second,” the appeals court panel’s ruling says,  “there was evidence that a minor girl was in the home, given that her car was parked in front of the house. The girl’s stepfather said that she was not supposed to be at the home and was exceedingly concerned for her welfare, especially given that it was the middle of the night.”

The appeals court panel’s decision noted, “In his deposition testimony, Mark Hunsberger recalled telling his wife that night that Blessard was ‘worried sick’ about his stepdaughter. The fact that the girl was not answering her cell phone suggested the possibility that she was hurt or otherwise in need of assistance.

“When a child goes missing, time is of the essence,” the court ruling says. “It turned out (the stepdaughter) was not in immediate danger, but we cannot judge Wood’s search based on what we know in hindsight. At the time of the search, there was reason to think she needed help,” the ruling says.

“Under these circumstances, a reasonable officer could conclude that prompt entry was necessary in order to protect the Hunsberger home from potential damage and to locate a missing girl who might be in harm’s way.

“Wood’s actions were reasonable and he therefore deserves immunity from money damages,” the ruling says.

The appeals court panel added, “We do not discount the fear and surprise that (the Hunsbergers) no doubt experienced from an unwanted intrusion into their home. But to say that the whole situation was unfortunate is different from saying an officer was objectively unreasonable in acting as he did.

“While it is tempting to second-guess an officer’s actions, it is also true that real harm to persons and property could result ‘if police tried to act with the calm deliberation associated with the judicial process,’” the appeals court panel added.

The complete appeals court ruling and petition for the court to hear arguments as a whole can be found at http://pacer.ca4.uscourts.gov/opinions_week.htm.

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