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Behind Door Number Three: But We Were Just Looking!

February 14, 2017  |  Phil Friduss
This article appeared in the February 2017 issue of the Georgia's Cities newspaper.
Phil Friduss
This is the story of what happens when people enter homes that are not theirs, without per­mission. For Sale signs out front of empty(ish) homes notwithstanding.
 
Gray v. Moses Ector, Chief of Police of Hogansville, et al.
Eleventh Circuit Case No. 12-11323 (11th Cir. 2013) (unpublished)
 
One will never know why Charles Gray and Caleb Eudy believed they were not trespassing when they entered a home that was for sale without permis­sion. But that’s just what they did in Feb­ruary of 2010 on historic Oak Street in the city of Hogansville.
 
Gray and Eudy were driving down the street on other business when they came upon the Puckette residence. The Puckettes had moved out. When they first got there, Gray had to leave a mes­sage with the realtor as she, too, was out.
 
After looking in the front windows, they went through a closed gate to get around to the back, where they found unlocked doors. In they went.

Meanwhile, across the street, a late-teenaged boy watched the whole thing, and thinking it was a burglary, dialed 911. Hogansville police responded to the call.
 
The problem for Gray and Eudy is that they really did not have permission to be on the property. Eudy said that he thought Gray had gotten permission from the realtor, which he had not. Gray, after claiming he had permission, backed off, relying on the fact the house was for sale, it was abandoned and the back door was open.
 
Responding Officer Jeff Shepard could not make heads or tails from the differing accounts and decided to ar­rest them for attempted burglary/tres­passing/etc. Afterwards, the realtor con­firmed Gray had left a message with her. Charges were dropped and lawsuits commenced.

While charges had been pending, Eudy accused the home-owners, the Puckettes, of bribing him to have the charges dropped in exchange for his pur­chasing the house.
 
Gray and Eudy brought separate suits. Gray relied heavily on the position that homes for sale like the one on Oak Street, in abandoned-like conditions, carry an open invitation to come on in and look, especially when the back door is open. Eudy relied on the same argument, but with the added benefit of being able to say he thought he had permission.
 
In Gray, first the federal district court, and later the Eleventh Circuit Court of Appeals, said that despite a reasonably displayed soft shoe, Gray could not dance around the fact that Officer Shep­pard had probable cause to believe a crime had been/was being committed. Perfect cause is not needed, just prob­able cause. And, the fact these men did not have explicit permission to be on the property, and gave inconsistent ac­counts was plenty enough for an arrest to be made. That perhaps it might have been better to cut these two loose was not part of the legal equation.

Eudy met the same fate in federal court. However, he also sued Ms. Puck­ette in that same suit. Eudy’s matter against Puckette is still alive, same with his right to appeal Hogansville’s victory.
 
When our officers come to these situ­ations, nothing is certain. And the law gives our officers wide latitude in exer­cising their discretion as to whether or not to arrest under many circumstances, like the one here. Perhaps a more sea­soned officer would have let them go. Perhaps not. As far as liability goes, how­ever, these situations are left up to the officer with the protection of the law.
 
Phil Friduss is a local government attorney with the law firm of Hall Booth Smith, P.C., in its Atlanta office.