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Huntington Beach police wrongfully entered residence without warrant, jury finds

An Orange County Superior Court jury has determined that two Huntington Beach police officers wrongfully entered a resident's apartment without a warrant during an investigation of a noise complaint two years ago.

The jury voted 11 to 1 that Officers Bernard Atkins and Jason McFall had violated Roger Mielke's 4th Amendment protection against unreasonable search and seizure, said Mark Eisenberg, an attorney representing Mielke.

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The jury awarded Mielke $28,000 in compensatory damages; Eisenberg said he could be awarded up to $350,000 in attorney's fees.

The jury decided unanimously that the officers did not act with malice, fraud or oppression, so Mielke was not awarded punitive damages.

Huntington Beach City Atty. Michael Gates called the attorney's fees excessive and said his office would challenge the amount.

Atkins and McFall responded to a noise complaint about 2 a.m. Aug. 24, 2013, in the 7700 block of Garfield Avenue. The officers entered Mielke's apartment through an unlocked door and began to search the living room as he slept in his bedroom, according to the lawsuit.

When Mielke awoke, the officers told him that they were looking for the source of loud music and that they could enter his home to enforce the city's noise code, according to the suit.

The ordinance allows police to arrest a person, with or without a warrant, when there is reasonable cause to believe a misdemeanor has occurred. A noise violation is a misdemeanor.

Gates maintained that the officers were performing a community service and were allowed to enter.

According to federal law, officers need a warrant to search a home unless given consent by the person whose property is being searched, or if people are in imminent danger, evidence is being destroyed or a suspect is about to escape.

"The officers saw that the door was open, it was the middle of the night, thought it was an unusual thing and went in to check it out," Eisenberg said. "That's not what the 4th Amendment allows for, and the jury saw right through it."

Mielke asked the officers to leave after learning that neither had a warrant. No arrests were made or citations issued, Eisenberg said.

This is not the only time Huntington Beach has been sued over its noise ordinance. In September 2013, the city paid $150,000 to settle a lawsuit by a couple who claimed that officers had entered their home without a warrant, falsely arrested them and inappropriately touched one of them.

Eisenberg represented the couple in that case.

Twitter: @acocarpio

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Carpio writes for Times Community News.

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