Armijo Ex Rel. Armijo Sanchez v. Peterson

FILED

United States Court of Appeals

Tenth Circuit

April 13, 2010

PUBLISH Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARTHA ARMIJO, as parent and

best friend of Christopher Armijo

Sanchez,

No. 09-2114

Plaintiff - Appellee,

v.

ROB PETERSON; CHARLES HOOK;

DARIO SOLIZ; ERIC SANCHEZ;

MELISSA MOLINA; WALLACE

DOWNS; BRIAN GOODMAN;

GABRIELLA GRAHAM,

Defendants - Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. 09-CV-00090-RHS-CG)

Jose Coronado, Las Cruces, New Mexico, for Plaintiff - Appellee.

Jared Abrams, Senior Assistant City Attorney for the City of Las Cruces, Las

Cruces, New Mexico, for Defendants - Appellants.

Before KELLY, EBEL, and BRISCOE, Circuit Judges.

KELLY, Circuit Judge.

Defendants-Appellants, several municipal law enforcement officers, appeal

from the district court’s denial of qualified immunity in this civil rights action

under 42 U.S.C. § 1983.

Plaintiff-Appellee Martha Armijo sued the officers for violating the Fourth

Amendment when the officers entered and searched her home and detained her

son, Christopher Armijo Sanchez. On summary judgment, the district court

denied qualified immunity, citing material facts in dispute. Because under any

view of the facts the officers did not violate the Fourth Amendment, they deserve

qualified immunity. We reverse.

Background

We set forth Plaintiff’s version of the facts.

I. Gangs and Anonymous Callers Threatened Oñate High School.

On September 22, 2006, an anonymous caller made two bomb threats to

Oñate High School in Las Cruces, New Mexico. Stip. App. at 33-36. During the

two months immediately preceding these calls, police officers assigned to the

high school had dealt with various gang problems and multiple bomb and

shooting threats. Stip. App. at 31-32, 102. Only three days before, an anonymous

caller had made a bomb and shooting threat. Stip. App. at 32.

The morning of the threats, two female students predicted them to Oñate

High School’s principal. Stip. App. at 33. The students told the principal that the

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day before they had seen a fight between two rival gangs, the East Siders and the

Sureños. Id. According to the students, the gang members said that they would

bring guns to school the next day, call in a bomb threat to force the school to

evacuate, and open fire on the students or start a gunfight when the students were

outside. Id. Although the students did not know the gang members’ names, they

recognized them from Oñate High School and assumed they referred to that

school. Id.

Next, a woman identifying herself as the mother of a boy attending

Mayfield High School called the principal of Oñate High School. Stip. App. at

33-34. The woman said that her son told her that a male named Chris would call

in a bomb threat to Oñate High School. Stip. App. at 34. She said that Chris was

a member of the East Siders gang and that Chris had formerly attended Oñate

High School but recently started at Mayfield High School. Id. The principal told

the police officer assigned to the school about these tips. Id.

Soon, at 10:35 a.m., a juvenile-sounding male called 911 and made the first

bomb threat to Oñate High School. Id. The police officer at the school had

spoken to the two female students, who repeated everything to him. Stip. App. at

33. Because the officer viewed the shooting threats to be greater than the bomb

threat, he told the principal to place the students under lock-down, so the students

could not leave the school. Stip. App. at 35.

When his sergeant arrived, the officer told her that Christopher Armijo was

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the only suspect. Stip. App. at 36-37. The officer believed that (1) Oñate High

School had recently expelled Mr. Armijo and he now attended Mayfield High

School, (2) Mr. Armijo was an East Sider, and (3) no other student named Chris

had recently transferred between those schools. Id.

At 11:00 a.m., a juvenile-sounding male made another bomb threat to Oñate

High School. Stip. App. at 35-36. Like the prior call, this one was from a

disconnected cell phone. Stip. App. at 35. All cell phones can call 911, even if

their service is disconnected, but disconnected phones are harder to trace than

functioning phones. Id. The officer thought that the person making the threat had

seen that the students had not left the building, which frustrated the shooting, and

that he was calling a second time to try again. Stip. App. at 36.

II. The Police Searched the House and Detained Mr. Armijo.

The officer then dispatched four other officers to Mr. Armijo’s home,

which they believed was a gang hangout. Stip. App. at 37. Ms. Armijo also lived

there, although she was not at home. Stip. App. at 101, 103. Three officers

knocked on the front door and yelled “Police Department. Anybody in here?,”

“Come to the door,” and “Let yourself be known” as loudly as they could for two

to three minutes. Stip. App. at 37-38. When no one answered, one officer then

tried the doorknob and found it unlocked. Stip. App. at 38.

The officers radioed a sergeant at the school. Id. From her own

knowledge, the sergeant believed Oñate High School had recently expelled Mr.

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Armijo, that he now attended Mayfield High School, that expelled students might

be angry with the school, and that bomb threats generally were made by angry or

problematic students. Stip. App. at 39-40. The sergeant thought Mr. Armijo was

the only suspect and authorized entry. Stip. App. at 40.

The officers entered. Id. They searched the home for Mr. Armijo and

anyone else within, in part to ensure officer safety. Stip. App. at 41. According

to Mr. Armijo, he was sound asleep when the officers entered his bedroom. Stip.

App. at 99. Two officers pointed their guns in his face, several yelled at him to

get up, one or more pulled him out of bed, one handcuffed him, and one took him

out on his porch in his underwear and T-shirt. Id.

While Mr. Armijo was on the porch, the officers searched the home for

about five minutes. Id. They questioned him and requested his cell phone, which

he provided. Stip. App. at 42. The officers checked the phone and the house’s

land line. Id. After discovering that neither phone called in the threats, they

removed the handcuffs and left. Stip. App. at 42, 99. At most, the officers spent

twenty minutes at the home. Stip. App. at 43, 58. When they left, the school was

still under lock-down. Stip. App. at 43.

III. The District Court Denied the Officers Qualified Immunity.

The district court held in a brief order that an issue of material fact as to

the reasonableness of the officers’ conduct precluded summary judgment. Armijo

v. Las Cruces Police Officers, No. 09-90 RHS/CEG, slip op. at 3 (D.N.M. Apr. 9,

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2009) (Stip. App. at 123). The court did not discuss the factual disputes except

one example: “evidence showing Defendants did not have objectively reasonable

grounds to believe there was an immediate need to protect lives.” Id. The

officers appeal the denial of qualified immunity, and other district court

decisions. 1 Stip. App. at 125-26.

Listing “the facts that the district court assumed when it denied summary

judgment” is “‘extremely helpful to a reviewing court.’” Johnson v. Jones, 515

U.S. 304, 319 (1995) (citation omitted). When a district court does not list the

material disputed facts, “a court of appeals may have to undertake a cumbersome

review of the record to determine” those facts. Id. The better practice is to

identify in some way the facts precluding qualified immunity.

Discussion

I. Jurisdiction

“[A] district court’s denial of a claim of qualified immunity, to the extent

that it turns on an issue of law, is an appealable ‘final decision’ within the

meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”

1

The officers (1) appeal the denial of their motion to dismiss based on the

applicable statute of limitations, (2) appeal the denial of summary judgment on

their state law claims, and (3) argue that the City of Las Cruces bears no

municipal liability. Aplt. Br. at 35-42; Stip. App. at 125-26. However, these

decisions are not final orders triggering our appellate jurisdiction. 28 U.S.C. §

1291.

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Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Our jurisdiction is limited to

“whether or not certain given facts showed a violation of ‘clearly established

law.’” Johnson, 515 U.S. at 311 (citation omitted). When a district court denies

qualified immunity because of a factual dispute, “that finding is not

jurisdictionally dispositive on appeal” if the defendants argue that immunity

applies even under the plaintiff’s version of the facts. Eidson v. Owens, 515 F.3d

1139, 1145 (10th Cir. 2008). Relying on Ms. Armijo’s version of the facts, we

have jurisdiction to consider whether the Defendants have qualified immunity.

II. Qualified Immunity

We review de novo a district court’s decision to deny a summary judgment

motion that asserts qualified immunity. Eidson, 515 F.3d at 1145. The officers

deserve summary judgment “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any

material fact and the movant is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c)(2).

Qualified immunity “protects governmental officials from liability for civil

damages insofar as their conduct does not violate ‘clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Pearson

v. Callahan, 129 S. Ct. 808, 815 (2009) (citation omitted). The qualified

immunity inquiry has two elements: whether a constitutional violation occurred,

and whether the violated right was “clearly established” at the time of the

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violation. Pearson, 129 S. Ct. at 815-16. We begin with the first element,

whether the officers’ entry, search, and detention violated the Fourth Amendment.

Cf. Pearson, 129 S. Ct. at 818.

III. Exigent Circumstances Justified the Entry.

The Fourth Amendment provides that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated.” U.S. Const. amend IV. “[S]earches and seizures

inside a home without a warrant are presumptively unreasonable.” Payton v. New

York, 445 U.S. 573, 586 (1980). “[W]arrants are generally required to search a

person’s home or his person unless ‘the exigencies of the situation’ make the

needs of law enforcement so compelling that the warrantless search is objectively

reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385,

393-94 (1978) (citations omitted). The officers bear the burden of establishing

that the threats posed exigent circumstances justifying the warrantless entry.

United States v. Reeves, 524 F.3d 1161, 1169 (10th Cir. 2008).

A. The Scope of the Exigent Circumstances Exception

“One exigency obviating the requirement of a warrant is the need to assist

persons who are seriously injured or threatened with such injury.” Brigham City,

Utah v. Stuart, 547 U.S. 398, 403 (2006). That exigency exists when “(1) the

officers have an objectively reasonable basis to believe there is an immediate

need to protect the lives or safety of themselves or others, and (2) the manner and

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scope of the search is [sic] reasonable.” United States v. Najar, 451 F.3d 710,

718 (10th Cir. 2006). In such an emergency, officers do not need probable cause.

Cortez v. McCauley, 478 F.3d 1108, 1124 & n.21 (10th Cir. 2007) (en banc). The

Supreme Court illustrated that “police may enter a home without a warrant when

they have an objectively reasonable basis for believing that an occupant is

seriously injured or imminently threatened with such injury.” Brigham City, 547

U.S. at 400 (emphasis added).

Here, officers acted to protect not the house’s occupants, but the students

and staff at a nearby high school. We must decide whether the exigent

circumstances exception only justifies warrantless entries into a house to aid a

potential victim in the house, or if it also justifies warrantless entries into a house

to stop a person or property inside the house from immediately harming people

not in or near the house.

The Fourth Amendment’s touchstone is reasonableness in the totality of the

circumstances. Would-be attackers and victims are frequently not in the same

place, yet a requirement that they must be for exigent circumstances to occur

could hamper law enforcement and compromise public safety. See Mora v. City

of Gaithersburg, Md., 519 F.3d 216, 225-26 (4th Cir. 2008) (deciding that exigent

circumstances justified warrantless entry to search the home of a detained man

who minutes before threatened to massacre his co-workers); United States v. Bell,

500 F.3d 609, 613-15 (7th Cir. 2007) (finding that exigent circumstances justified

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searching a kidnapper’s hotel room safe to try to locate the victim).

We therefore hold that the exigent circumstances exception permits

warrantless home entries when officers reasonably believe that some actor or

object in a house may immediately cause harm to persons or property not in or

near the house.

In applying this exception, we “‘evaluate the circumstances as they would

have appeared to prudent, cautious, and trained officers.’” Reeves, 524 F.3d at

1169 (citation omitted). When circumstances objectively justify the officers’

actions, we do not consider the officers’ subjective motivations. Brigham City,

547 U.S. at 404. Ms. Armijo’s arguments about investigatory motivations and

about how seriously the officers credited the threats are irrelevant to the extent

that they focus on the officers’ credibility and personal motivations. Aplee Br. at

13-14, 16, 20-21.

B. The Threats Posed Exigent Circumstances.

“Exigent circumstances are frequently found when dangerous explosives

are involved.” United States v. Lindsey, 877 F.2d 777, 781 (9th Cir. 1989). The

plausible reports of a bomb and a gun fight posed an emergency. The officers

thus had an objectively reasonable basis to believe they immediately needed to

protect the lives and safety of those at the high school.

Contrary to Ms. Armijo’s assertion, the officers’ choice to lock the school

down, instead of evacuating it, did not show that no real bomb emergency existed.

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Aplee Br. at 20-21. The officers were between a rock and a hard place. They

could either lock down the school, and risk leaving students exposed to a bomb,

or evacuate the school, possibly sending the staff and students into gunfire as they

exited. The officers made an on-the-ground risk assessment and a split-second

judgment call. That the officers could not mitigate both risks simultaneously does

not suggest that either was trivial or insubstantial. Both were urgent. We will not

second-guess the officers’ decision about which risk was greater, nor their actions

to deal with these risks. Thomson v. Salt Lake County, 584 F.3d 1304, 1318

(10th Cir. 2009).

Moreover, “[r]easonable belief does not require absolute certainty . . the

standard is more lenient than . . . probable cause.” United States v. Gambino-

Zavala, 539 F.3d 1221, 1225 (10th Cir. 2008). At the same time, a claim of

urgent needs or exigent circumstances must have some factual support. Cortez,

478 F.3d at 1124.

Here, the officers had a history of gang problems, two accounts of what

might occur, and the bomb threats. Some information provided a link (albeit

incorrectly) to Mr. Armijo: his name was “Chris,” they believed him to be an East

Sider gang member, and he had recently changed schools. The officers could

reasonably believe such information implicated Mr. Armijo. Stip. App. at 33-34,

36-40. This case goes beyond what we have held insufficient. E.g., Cortez, 478

F.3d at 1122-23 (the unsubstantiated double-hearsay allegation of a toddler and a

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lack of any imminent danger or destruction of evidence).

Ms. Armijo contends that the officers got their facts wrong. Stip. App. at

85. For example, she argues (1) that Mr. Armijo was not a gang member, (2) that

he voluntarily withdrew from Oñate High School, and (3) that he never attended

Mayfield High School. Stip. App. at 85, 98-99. Still, the Fourth Amendment

evaluates reasonableness based upon what the officers reasonably believed at the

time. It does not matter that, in retrospect, information provided to the officers

was wrong, and that Mr. Armijo apparently had nothing to do with the threats.

Michigan v. Fisher, 130 S. Ct. 546, 549 (2009).

Ms. Armijo disputes that there was an exigent need to enter her house. The

officers could have dispelled their suspicions without entering the home, she

argues, by checking school records or questioning the informants further. Aplee

Br. at 14, 19-20. Still, if the officers acted reasonably, they need not exhaust

every avenue of dispelling suspicion. Perhaps more investigation would have

been worthy. Then again, given the imminence of the threatened attacks, perhaps

any delay would risk too much. The information the officers had was enough for

a reasonable belief that exigent circumstances justified entry.

Moreover, the manner of the entry was reasonable. The officers knocked

repeatedly and shouted to get attention. Stip. App. at 37-38. Only then did they

enter. Stip. App. at 40. They did not force the door. Stip. App. at 38.

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IV. Exigent Circumstances Justified the Officers’ Search.

After entering, the officers searched the house. Stip. App. at 41. Under

Maryland v. Buie, 494 U.S. 325 (1990), a “protective sweep” of a residence to

ensure officer safety may take place only incident to an arrest. Id. at 334; United

States v. Walker, 474 F.3d 1249, 1254 (10th Cir. 2007). As we discuss below, the

officers did not arrest Mr. Armijo, so the search could not have been incident to

an arrest. “The sweep may nevertheless have been proper under the

exigent-circumstances doctrine” if reasonable grounds existed to search to protect

the safety of someone besides the officers. Walker, 474 F.3d at 1254. In other

words, if they had “a threat to a civilian’s safety.” Id.

An urgent need to protect those at the high school justified the officers’

five-minute search. Stip. App. at 41. The need to find and neutralize those

behind the threats made the entry reasonable. Necessarily, then, the

circumstances made a search for the suspect reasonable. Entering, but failing to

look for the suspect, would do nothing to prevent an attack. The emergency thus

justified the search separate and apart from concerns for officer safety.

We do not view the search in a vacuum. The officers reasonably suspected

that (1) the threats were part of the back and forth between rival gangs, and (2)

that Mr. Armijo was a gang member. From this, a reasonable officer could

suspect that Mr. Armijo might have accomplices.

Even after they found Mr. Armijo, the officers could have reasonably

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believed that sweeping for accomplices would prevent Mr. Armijo from evading

them. Or, they could suspect that these accomplices would also threaten the

school. After all, the officers thought Mr. Armijo might start a gunfight and

detonate explosives. These offenses cry out for concerted action. Although we

draw all reasonable inferences in Ms. Armijo’s favor, the evidence showing the

reasonableness of the officers’ search of the home for dangerous persons is so

apparent that to ignore it would be unreasonable.

Such a search must be “‘strictly circumscribed by the exigencies which

justify its initiation.’” Mincey, 437 U.S. at 393 (quoting Terry v. Ohio, 392 U.S.

1, 25-26 (1968)). The officers satisfactorily “confined the search to only those

places inside the home where an emergency would reasonably be associated,” that

is, where the perpetrators could be. Najar, 451 F.3d at 720.

V. Exigent Circumstances Supported Detaining Mr. Armijo.

The parties suggest that Mr. Armijo’s detention was not an arrest, but an

investigative detention under Terry v. Ohio, 392 U.S. 1, 20-21 (1968). Aplt. Br.

at 23-25; Aplee Br. at 19. Under Terry, “[a]n officer can stop and briefly detain a

person for investigative purposes if the officer has a reasonable suspicion

supported by articulable facts that criminal activity may be afoot.” Cortez, 478

F.3d at 1115 (internal quotation marks and citation omitted).

A. Exigent Circumstances May Justify Intermediate Seizures.

The investigative detention category is shorthand for a broad range of

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seizures amounting to more than consensual encounters but less than arrests. Id.

Terry’s reasonable, articulable suspicion standard governs these diverse

intrusions. Investigative detentions are permissible in some circumstances but not

in others.

Absent exigent circumstances and probable cause, or a warrant, officers

may not enter a home and seize an individual for routine investigatory purposes,

no matter whether the seizure is an investigatory stop or an arrest. Payton, 445

U.S. at 590. In that sense, Terry stops have no place in the home. Harman v.

Pollock, 586 F.3d 1254, 1262 & n.2 (10th Cir. 2009); Reeves, 524 F.3d at 1166-

67.

When officers search a house pursuant to a warrant, they may detain an

occupant. Michigan v. Summers, 452 U.S. 692, 696, 703-05 (1981). Likewise,

when officers lawfully arrest one occupant, officers may stop co-occupants as part

of a Buie sweep. United States v. Maddox, 388 F.3d 1356, 1361-63 (10th Cir.

2004). And, just as exigent circumstances permit a warrantless home entry,

emergencies may justify a warrantless seizure in the home. Kirk v. Louisiana,

536 U.S. 635, 638 (2002); Payton, 445 U.S. at 587-88; Reeves, 524 F.3d at 1166-

67; Walker, 474 F.3d at 1252-53.

B. The Emergency Justified Mr. Armijo’s Intermediate Detention.

The officers focused on the emergency and detained Mr. Armijo for the few

minutes necessary to confirm or dispel their suspicions. Terry, 392 U.S. at 28;

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Stip. App. at 41-42, 99. When the phones supported Mr. Armijo’s innocence,

they left. Stip. App. at 42-43, 99. They did not question him about anything else.

Terry, 392 U.S. at 30. This is reasonable.

First, we agree with the parties that an investigative detention took place,

notwithstanding that it occurred in the home. See Cortez, 478 F.3d at 1123

(seizure of Tina Cortez while in her home). The encounter was non-consensual,

but it did not amount to an arrest. Although the officers displayed their guns,

yelled, and took Mr. Armijo outside, the officers neither told Mr. Armijo that he

was under arrest, nor placed Mr. Armijo in their patrol car, nor moved him to the

police station, nor read him his Miranda rights. Stip. App. at 99. The seizure

thus was an intermediate intrusion.

Second, exigent circumstances supported the seizure. The dual threats to

the high school posed an emergency. To incapacitate the person suspected of

making the threats, the officers needed to detain Mr. Armijo while they

investigated further. Of course, the initial entry and brief search were based upon

an emergency, so the seizure did not stem from an ordinary investigation. Cf.

Payton, 445 U.S. at 587-88.

Third, based on informants and their own knowledge, the officers had

reasonable articulable suspicion that Mr. Armijo might be involved. The tips

pointed only at him. Together, these factors remove this case from the strict rules

governing warrantless entries enabling ordinary investigative seizures, and places

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it within the more flexible realm of seizures supported by exigent circumstances.

In short, if the simultaneous threats justify the entry and the search, they

also justify the object of those actions: neutralizing the threat. They officers had

to stop the suspect immediately or risk the attacks. It would be unreasonable to

permit the officers to enter and search, but forbid them from briefly detaining the

object of their quest. That the officers ultimately cleared Mr. Armijo of suspicion

does not alter their actions’ reasonableness. Cf. Illinois v. Wardlow, 528 U.S.

119, 126 (2000).

VI. The Dissent Misplaces Its Concerns.

The dissent would hold that we lack jurisdiction because of factual

disputes. Yet, we have jurisdiction when immunity applies under a plaintiff’s

version of the facts. E.g., McBeth v. Hines, —F.3d —, 2010 WL 762189 at *3

(10th Cir. 2010); Eaton v. Meneley, 379 F.3d 949, 955 (10th Cir. 2004); Johnson

v. Martin, 195 F.3d 1208, 1214 (10th Cir. 1999).

The dissent further argues that a jury should resolve whether exigent

circumstances existed. Dissent Op. at 8-15. It suggests that because the officers

did not evacuate the school, a jury could conclude that the officers viewed the

bomb threats solely as a ruse to evacuate the school rather than as threats. Id. at

14-15. According to the dissent, this calls into question whether the officers had

an objectively reasonable basis for entering and searching Ms. Armijo’s home.

Id. Rather than acting as they did, the officers could have surveilled the school

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and Ms. Armijo’s house while either getting a warrant or obtaining consent to

enter the home. Id. at 15.

Still, the officers acted within the wide range of objectively reasonable

choices. Faced with simultaneous risks and incomplete information, the officers

chose to lock the school down because they judged that evacuation posed a

greater risk to the high school. Inferring from this that the officers viewed the

bomb threat as trivial is unreasonable.

Nor were the officers required to try to dispel their suspicion and further

verify their information. Contra id. at 12. The Fourth Amendment does not

require officers to use the least restrictive means to investigate a threat. If

officers act reasonably, it does not require them to do more. Phillips v. James,

422 F.3d 1075, 1080 (10th Cir. 2005).

According to the dissent, reasonable minds could differ on the seriousness

of the emergency, and so this case requires a jury trial. Dissent Op. at 1-2. That

misstates the standard. In this context, a factual dispute goes to a jury if, under

Plaintiff’s facts, no reasonable officer could have believed that the emergencies

justified their actions. Najar, 451 F.3d at 718. For the reasons stated, even under

the Plaintiff’s version of the facts, reasonable officers could have believed the

situation justified the response that occurred.

The dissent alternatively posits that, no matter whether exigent

circumstances existed, the officers needed probable cause to enter the home.

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Dissent Op at 2, 7 n.1, 8-9, 11 n.2, 18. Not so. Officers do not need probable

cause if they face exigent circumstances in an emergency. Brigham City, 547

U.S. at 402-07; Cortez, 478 F.3d at 1124 & n.21; Najar, 451 F.3d at 718.

The dissent next argues that any sweep is without support because our

precedents permit protective sweeps only when incident to an arrest. Dissent Op.

at 16-17. Although this court has not explicitly endorsed a search in non-arrest

emergencies, an objectively reasonable officer could conclude a five-minute

search of the house to find and neutralize any accomplices is reasonable under

these exigent circumstances. Walker, 474 F.3d at 1254. 2 After all, the officers

were investigating threats of a planned gunfight and detonating a bomb—offenses

that probably involve more than one person.

Last, the dissent cites cases forbidding warrantless, ordinary investigatory

stops and arrests in the home. Dissent Op. at 18-23. Those precedents do not

forbid warrantless entries and stops during emergencies. They hold that the

exigent circumstances exception applies if officers show more than the usual need

to seize a suspect or preserve evidence. Kirk, 536 U.S. at 638; Payton, 445 U.S.

at 587-88; Reeves, 524 F.3d at 1166-67.

Moreover, this court sitting en banc has held that investigative detentions

2

Of course, it also was reasonable for those officers to sweep the house for

their own protection — even though they did not at that moment plan to arrest an

occupant. But we need not rely on this rationale because exigent circumstances

(public safety) support what was done here.

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may occur in the home, provided (1) that exigent circumstances exist and (2) that

officers have reasonable suspicion. See Cortez, 478 F.3d at 1123. Here, officers

entered and seized Mr. Armijo not during a routine investigation but in an

emergency. The dissent’s concerns ultimately return to whether exigent

circumstances existed. An emergency existed and, paired with sufficient factual

suspicion, they make Mr. Armijo’s detention reasonable. Contrary to the dissent,

this holding does not give officers carte blanche to ignore warrant requirements in

non-emergency, routine investigations. Dissent Op. at 23.

Because the officers did not violate the constitutional rights of the Plaintiff,

the officers deserve qualified immunity.

REVERSED.

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09-2114, Armijo v. Peterson, et al.

BRISCOE, J., dissenting:

I respectfully dissent. It is well established that we may take “interlocutory

jurisdiction over denials of qualified immunity at the summary judgment stage to

the extent that they turn on an issue of law.” Fogarty v. Gallegos, 523 F.3d 1147,

1153 (10th Cir. 2008) (quotation, citations and alteration omitted). “Under this

limited jurisdiction, we may review the district court’s abstract legal conclusions,

such as whether the law was clearly established at the time of the alleged

infraction.” Id. at 1153-54. We may not take jurisdiction at the interlocutory

stage, however, over appeals that challenge the district court’s “factual

conclusions, such as the existence of a genuine issue of material fact for a jury to

decide, or that a plaintiff’s evidence is sufficient to support a particular factual

inference.” Id. at 1154.

By asserting jurisdiction over this appeal, the majority implicitly, but

erroneously, concludes, contrary to the conclusion reached by the district court,

that reasonable minds could not differ with regard to whether the facts leading up

to the officers’ entry into plaintiff’s home gave rise to exigent circumstances.

Because I agree with the district court’s conclusion that the evidence presented by

the parties created genuine issues of material fact that precluded the entry of

summary judgment in favor of defendants on qualified immunity grounds, I would

dismiss the appeal for lack of jurisdiction. Gross v. Pirtle, 245 F.3d 1151, 1157

(10th Cir. 2001) (“If we determine the district court’s conclusion rests on findings

of evidence sufficiency, we must dismiss for lack of jurisdiction.”).

In addition to the jurisdictional issue, the majority opinion is erroneous in

three key respects. First, the majority erroneously extends the holding in

Brigham City v. Stuart, 547 U.S. 398 (2006), which authorizes “law enforcement

officers [to] enter a home without a warrant to render emergency assistance to an

injured occupant or to protect an occupant from imminent injury,” id. at 403, to

circumstances where “officers reasonably believe that some actor or object in a

house may immediately cause harm to persons or property not in or near the

house,” Maj. Op. at 10 (italics in original). In doing so, the majority effectively

dispenses not only with the warrant requirement, but also with the critical

requirement of probable cause, for what, at bottom, is simply “the paradigmatic

entry into a private dwelling by . . . law enforcement officer[s] in search of the

fruits[,] instrumentalities[, or perpetrators] of crime.” Michigan v. Tyler, 436

U.S. 499, 504 (1978). For exigency to justify a warrantless entry into a dwelling

in situations where, as here, law enforcement officers are seeking to detain and

question a suspect, it must be coupled with probable cause. Second, the majority

errs in concluding that the defendants’ search of plaintiff’s home was justified by

the protective sweep doctrine. Not only does Tenth Circuit precedent fail to

support the extension of the protective sweep doctrine to non-arrest situations

involving exigent circumstances, defendants have not suggested or produced any

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evidence to support a finding that a protective sweep was warranted in this case.

Third, the majority seriously errs in concluding that the defendants’ in-home

seizure of Chris Armijo was justified under Terry v. Ohio, 392 U.S. 1 (1968).

I

The parties’ summary judgment pleadings reveal the following relevant

facts. At approximately 10:30 a.m. on September 22, 2006, an anonymous

juvenile male telephoned MVRDA, the agency that handled 911 calls for the Las

Cruces, New Mexico, Police Department, and advised that a student at Oñate

High School (OHS) was carrying a bomb and a firearm in a backpack. App. at

32, 56. MVRDA was unable to trace the call. Id. at 32. The call represented the

third or fourth bomb threat that had been made regarding OHS in the span of a

few days. Id. at 56. On at least one of the previous occasions, the police

evacuated students from OHS and searched student backpacks for bombs. Id. at

32. No bombs were found. Id.

Charles Hook, a Las Cruces police officer assigned to OHS as a School

Resources Officer, directed the principal of OHS, Joyce Aranda, “to place the

students in lockdown, that is, not allow them to leave the school.” Id. at 72. In

making this decision, Hook was not only aware of the circumstances of the

previous bomb threats, he was also privy to two pieces of additional information.

First, he had spoken with two female students at OHS earlier that morning who

reported having overheard a conversation the day before between rival gang

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members “stat[ing] that they would call in a bomb threat and, when students

evacuated, there would be either a gun fight between gangs or a drive-by

shooting.” Id. at 71. Second, earlier that morning Principal Aranda had received

a telephone call “from a woman who identified herself as the mother of a son who

attend[ed] Mayfield High School.” Id. “The woman told Principal Aranda that

[a] boy named ‘Chris,’” a student at Mayfield High School who had previously

attended OHS, “intended to call in a bomb threat to [OHS] that day.” Id. at 71-

72. According to Hook, he “viewed the threat of a gunfight between rival gangs

or a drive-by shooting perpetrated by one gang against another . . . as a greater

threat than the bomb threat.” Id. at 72.

At approximately 11:00 a.m. on September 22, 2006, MVRDA received

another call, again from an anonymous juvenile male, stating that a bomb had

been placed at OHS. Id. at 72. Upon learning of this second call, Hook

“concluded that the person who made the bomb threat was observing the [OHS]

building, noticed that [it] was not being evacuated[,] and therefore made a second

attempt to have the building evacuated by calling in the second bomb threat.” Id.

at 72-73. Consequently, Hook continued to stand by his earlier direction that the

school be placed in lockdown status. Shortly after learning of the second call,

Hook determined that [a former OHS student named] Chris Armijo . . . was the

only possible suspect in regards to making the bomb threats.” Id. at 73.

According to Hook, Chris Armijo had “recently been expelled” from OHS, “had

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begun attending Mayfield High School and was known to be a member of the East

Siders gang.” Id. Hook “went to the front office of [OHS] and obtained Chris

Armijo’s address.” Id. Hook then “called th[at] address to other officers over the

radio.” Id.

Robert Peterson, a Las Cruces police officer assigned to the “Targeting

Neighborhood Threats Unit,” “proceeded to the Armijo residence . . . in Las

Cruces.” Id. at 56. Peterson and two other officers (Wallace Downs and Melissa

Molina) arrived at the Armijo residence approximately twenty minutes after the

second bomb threat was received. Id. The intention of Peterson and the other

officers was to interview Chris Armijo “and determine whether or not his cell

phone matched that of the individual who called in the bomb threat[s].” Id.

Peterson knocked and announced at the front door of the Armijo residence for

approximately “two to three minutes.” Id. “After knocking for two to three

minutes” with no one answering, Peterson “tried the doorknob” and discovered

that the front door of the residence “was unlocked.” Id. at 57. Peterson notified

his sergeant, Gabriella Graham, “by radio that the door was unlocked.” Id.

Graham authorized Peterson, Downs and Molina to enter the Armijo

residence. Id. According to Graham, “[t]he basis for [her] giving permission for

the officers to enter the home, as opposed to obtaining a search warrant or waiting

for an occupant to emerge or return, was exigent circumstances.” Id. at 62. More

specifically, Graham concluded that a warrantless entry was reasonable due to the

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fact that OHS “was still under lockdown, with the combined threat of a bomb

inside the school and a drive-by shooting outside of it and the fact that [they] had

identified a probable suspect . . . .” Id. at 63.

Peterson, Downs and Molina entered the Armijo residence. Id. at 57. As

they did so, Peterson loudly yelled various phrases such as “‘Police Department,’

‘Show Yourself,’ and ‘Let Yourself Be Known.’” Id. The officers proceeded to

conduct a protective sweep of the residence. Id.

The parties differ as to the ensuing events. Peterson alleges that Chris

Armijo came out of a bedroom and stated that he had been asleep, id., the officers

then proceeded to interview Armijo and examine his cell phone, id. at 58, no

search of the home was conducted, and the episode lasted approximately twenty

minutes. Id.

According to Chris Armijo, he “was awoken by several police officers

yelling and screaming at [him], and at least two of those officers were pointing a

gun at [him].” Id. at 99. Chris Armijo further alleges that “[o]ne or more police

officers pulled [him] out of bed” and “[o]ne of the officers handcuffed [him] and

took [him] outside to the porch” while the other officers went back inside the

house for approximately five minutes. Id.

It is uncontroverted that the police ultimately concluded that Chris

Armijo’s cell phone did not match the phone number that was used to make the

two bomb threats, and thus they concluded Chris Armijo was not responsible for

-6-

making the two bomb threats.

II

In their motion for summary judgment, defendants argued they were

entitled to qualified immunity as to plaintiff’s § 1983 claims because they “were

facing exigent circumstances which left them with no choice but to enter the

home without a warrant in order to search for” Chris Armijo. Id. at 48. In her

response to defendants’ summary judgment motion, plaintiff argued, in pertinent

part, that “there [we]re disputed material facts” that prevented the grant of

summary judgment in favor of defendants. Id. at 82. In particular, plaintiff

argued that a reasonable jury could find that defendants lacked an objectively

reasonable basis for believing there was an immediate need to enter her home in

order to protect their lives or the lives of others. Id. at 86-89.

When the district court subsequently denied defendants’ motion for

summary judgment, it stated, in pertinent part:

Having considered the parties’ arguments and evidence, the Court

finds that material facts underlying a determination of whether

Defendants’ conduct was reasonable under the circumstances are in

dispute. [Footnote: For example, although Defendants contend that

the entry into Plaintiffs’ home was justified by exigent

circumstances, Plaintiffs point to evidence showing Defendants did

not have objectively reasonable grounds to believe that there was an

immediate need to protect lives.] Thus, the Court is unable to

conclude whether Defendants’ warrantless entry into Plaintiffs’ home

was reasonable. Summary judgment on qualified immunity grounds

is not appropriate under these circumstances. See Olsen v. Layton

Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (explaining that

summary judgment based on qualified immunity is properly denied

-7-

where there exist unresolved factual disputes relevant to the

immunity analysis) (citation omitted); see also Thomas v. Roach, 165

F.3d 137, 143 (6th Cir. 1999) (stating that summary judgment on

qualified immunity is not appropriate where material facts

determinative of reasonableness are in dispute). Consequently,

Defendants’ motion for summary judgment on Plaintiffs’ § 1983

claims will be denied.

Id. at 123-24.

III

Casting aside the district court’s analysis, the majority concludes “we have

jurisdiction to consider whether the Defendants have qualified immunity” by

“[r]elying [solely] on Ms. Armijo’s version of the facts . . . .” Maj. Op. at 7.

Although I do not question our authority to do so, I disagree that plaintiff’s

version of the facts reveals no constitutional violations. Indeed, I am of the view

that the majority has misanalyzed each of the constitutional violations alleged by

plaintiff.

a) Exigent circumstances

“[P]rivate dwellings” are “ordinarily afforded the most stringent Fourth

Amendment protection.” United States v. Martinez-Fuerte, 428 U.S. 543, 561

(1976). Consequently, a warrantless entry into a home by a government official

is “presumptively unreasonable.” Brigham City v. Stuart, 547 U.S. 398, 403

(2006) (internal quotation marks and citations omitted); see Michigan v. Tyler,

436 U.S. 499, 506 (1978) (noting that “[s]earches for administrative purposes,

like searches for evidence of crime, are encompassed by the Fourth

-8-

Amendment.”). “[B]ecause,” however, “the ultimate touchstone of the Fourth

Amendment is ‘reasonableness,’ the warrant requirement is subject to certain

exceptions.” Brigham City, 547 U.S. at 403. In particular, the Supreme Court

has recognized several types of exigencies that may “obviat[e] the requirement of

a warrant . . . .” Id. (citing cases).

Typically, where criminal law enforcement officers are involved, any such

exigency must be coupled with probable cause. See Kirk v. Louisiana, 536 U.S.

635, 638 (2002) (per curiam) (“[P]olice officers need either a warrant or probable

cause plus exigent circumstances in order to make a lawful entry into a home.”).

That is because the usual purpose of criminal law enforcement officers entering a

home is to either seize a suspect or to search for incriminating evidence. Cf.

Mincey v. Arizona, 437 U.S. 385, 393 (1978) (“[A] warrantless search must be

‘strictly circumscribed by the exigencies which justify its initiation . . . .’”)

(quoting Terry v. Ohio, 392 U.S. 1, 25-26 (1968)). If, however, the exigency

motivating the warrantless entry by criminal law enforcement officers “is the need

to assist persons who are seriously injured or threatened with such injury,”

Brigham City, 547 U.S. at 403, i.e., so-called “emergency situation[s],” id. at 402,

there is no accompanying probable cause requirement. Cortez v. McCauley, 478

F.3d 1108, 1124 n.21 (10th Cir. 2007).

Applying these principles to the facts alleged by plaintiff, the majority

concedes that no one inside plaintiff’s home was “seriously injured or threatened

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with such injury.” Brigham City, 547 U.S. at 403; see Maj. Op. at 9 (“Here,

officers acted to protect not the house’s occupants . . . .”). Rather than rejecting

the applicability of Brigham City’s emergency situation exception and instead

considering whether the facts alleged by plaintiff fall within the typical exigent

circumstances exception (with its requirement of probable cause), the majority

presses forward and concludes, remarkably, that the emergency situation

exception recognized in Brigham City “also justifies warrantless entries into a

house to stop a person or property inside the house from immediately harming

people not in or near the house.” Maj. Op. at 9 (italics in original).

The majority’s new exception, however, bears little, if any, relation to the

emergency situation exception recognized in Brigham City. Whereas Brigham

City’s exception allows law enforcement officials to enter a home without a

warrant in order to physically aid or protect a victim or potential victim located

inside, the majority’s new exception authorizes law enforcement officers to enter

a home without a warrant in order to seize a suspected criminal. In other words,

the focus of the exception shifts from aiding a victim or protecting a potential

victim to seizing a potential criminal suspect. But the most troubling aspect of

the majority’s new exception is that, by purportedly extending Brigham City, it

simultaneously dispenses with the requirement of probable cause. Thus, under

the majority’s newly recognized exception, law enforcement officials may now

enter a home without a warrant or probable cause and presumably seize an

-10-

occupant thereof so long as they have some type of “objectively reasonable

basis,” Maj. Op. at 8, short of probable cause, for believing that such occupant

poses an immediate threat of harm to “people not in or near the house,” id. at 9.

In my view, the only constitutionally permissible basis for defendants’

warrantless entry into plaintiff’s home would be a combination of “probable cause

plus exigent circumstances . . . .” 1 Kirk, 536 U.S. at 638. More specifically,

defendants’ warrantless entry into plaintiff’s home could survive Fourth

Amendment scrutiny only if defendants had a particularized and objective basis

for suspecting that Chris Armijo was responsible for the bomb threats, United

States v. Ledesma, 447 F.3d 1307, 1316 (10th Cir. 2006) (describing probable

cause requirement), and the urgency of the situation was “‘so compelling that the

warrantless [entry] [wa]s objectively reasonable under the Fourth Amendment.’”

Brigham City, 547 U.S. at 403 (quoting Mincey, 437 U.S. at 393-94); see United

States v. Gambino-Zavala, 539 F.3d 1221, 1225 (10th Cir. 2008) (indicating that

exigent circumstances exist when “‘the officers have an objectively reasonable

basis to believe there is an immediate need to protect the lives or safety of . . .

others . . . .’”) (quoting United States v. Najar, 451 F.3d 710, 718 (10th Cir.

2006)).

1

Curiously, the majority acknowledges these principles not in its

discussion of the defendants’ warrantless entry into plaintiff’s home, but rather in

its discussion of the defendants’ seizure of Chris Armijo. Maj. Op. at 15.

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Significantly, however, defendants have never argued that they had

probable cause. And, even if they had, I would conclude that genuine issues of

material fact exist that preclude the entry of summary judgment on the issue of

probable cause. See generally Thomson v. Salt Lake County, 584 F.3d 1304,

1326 n.2 (10th Cir. 2009) (noting that genuine issues of material fact regarding

the existence of probable cause can exist that preclude the entry of summary

judgment on qualified immunity grounds).

As for the question of “whether exigent circumstances existed to excuse a

warrantless [entry],” that too “is a question for the jury provided that, given the

evidence on the matter, there is room for a difference of opinion.” Ingram v. City

of Columbus, 185 F.3d 579, 587 (6th Cir. 1999); cf. Bruner v. Baker, 506 F.3d

1021, 1028 (10th Cir. 2007) (noting that “the question whether an officer had

probable cause for an arrest” is a proper issue for the jury “‘if there is room for a

difference of opinion.’”) (quoting DeLoach v. Bevers, 922 F.2d 618, 623 (10th

Cir. 1990)). In moving for summary judgment, defendants in this case argued

that they “were facing exigent circumstances,” in particular “an immediate need

to protect lives,” “which left them with no choice but to enter [plaintiff’s] home

without a warrant in order to search for [Chris Armijo].” App. at 48. Plaintiff

did not seriously dispute the portion of defendants’ statement of facts describing

the general events that preceded the officers’ warrantless entry into her home.

She did, however, dispute whether those facts created exigent circumstances:

-12-

The Defendants allege that because they were concerned about

the bomb scare, they had to immediately find [Chris Armijo] and

question him. Yet they apparently did not believe the bomb scare

was legitimate. Instead of evacuating the school in order to secure

the safety of the students, they kept the school in lockdown. The

students were required to remain inside the school instead of outside.

It is incredible to believe the Defendants believed there was a bomb

in the school when SRO Hook kept the students inside. Since the

Defendants apparently did not believe the bomb threat was real, they

had sufficient time to further their investigation. They could have

called Mayfield High School to confirm whether [Chris Armijo] was

a student [there]. They could have called [his] mother to ask for

consent to enter and search her home for [him]. When Mrs. Armijo

learned that the police were at her home, she immediately left work

to get home. When she arrived and found no police, she called the

police department to inquire about why the police were at her home.

She wanted to know what had happened. There is no reason to

believe that she would not have cooperated with the police had they

requested permission to enter her home. They could have and most

likely did cordon off the school entrances, so that no one could come

in and no one could go out.

App. at 87-88.

Although the district court agreed with plaintiff that reasonable jurors could

differ on whether the evidence gave rise to exigent circumstances, the majority

summarily rejects that position on the grounds that “[p]laintiffs’ arguments about

investigatory motivations and about how seriously the officers credited the threats

are irrelevant.” Maj. Op. at 10. According to the majority, the Supreme Court’s

decision in Brigham City indicates that “[w]hen circumstances objectively justify

the officers’ actions, we do not consider the officers’ subjective motivations.”

Maj. Op. at 10.

Although I agree that Brigham City requires us to ignore any subjective

-13-

“investigatory motivations,” I disagree that it precludes us from considering “how

seriously the officers credited the threats . . . .” Id. Surely we can look at the

objective information the officer had and also look at the actions they took in

response to that information. In Brigham City, the defendants argued that the

challenged warrantless entry and search was unreasonable because, in part, the

entering “officers were more interested in making arrests than quelling violence.”

547 U.S. at 404. The Supreme Court rejected that argument, holding that “[t]he

officer’s subjective motivation [for making a warrantless entry] [wa]s irrelevant.”

Id. Here, in contrast, plaintiff argues, and I agree, that a relevant factor, indeed

perhaps the key factor, in assessing whether the officers had an objectively

reasonable basis to believe there was an immediate need to enter plaintiff’s home

in order to protect the lives or safety of the students at the high school was the

perceived legitimacy of the bomb threats. As plaintiff noted in her response to

defendants’ summary judgment motion, the actions of the defendants, particularly

Officer Hook, in placing the high school in “lock-down” mode rather than

evacuating the students clearly suggest defendants did not view the bomb threats

as legitimate, but rather as a ruse. Such a conclusion is bolstered by the

uncontroverted evidence indicating that the school had, shortly prior to the day at

issue, received two or three false bomb threats.

In turn, I fully agree with plaintiff and the district court that, in light of this

evidence, a jury could reasonably find that the defendant officers lacked an

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objectively reasonable basis for believing there was an immediate need to enter

plaintiff’s home in order to protect the lives or safety of the students. To be sure,

the evidence is uncontroverted that defendants took seriously the possibility that

the bomb threats were intended as a ruse to evacuate the students in order to

facilitate a drive-by shooting or other gang-related violence. But defendants fail

to explain, given the fact the students were locked down safely inside the school,

why it was necessary to immediately enter plaintiff’s home without a warrant. 2

As I see it, reasonable jurors could conclude that a combination of other tactics

(e.g., simultaneously surveilling both the high school and plaintiff’s house) would

have sufficed to keep any threat in check until a search warrant for plaintiff’s

home could have been obtained (or, as plaintiff suggests, until the defendants

could have contacted plaintiff and asked for consent to enter her home). As a

result, I believe the proper approach was the one adopted by the district court,

i.e., denying defendants’ motion for summary judgment and allowing plaintiff’s

claims regarding the constitutionality of the warrantless entry and ensuing search

and seizure to proceed further.

2

Although the majority characterizes the “threatened attacks” as

“imminen[t],” Maj. Op. at 12, the uncontroverted evidence suggests otherwise.

As I have noted, the evidence clearly indicates that the defendants did not view

the bomb threats as credible, but rather as a ruse for evacuating the high school

and facilitating some other type of violent attack. Further, reasonable jurors

could conclude that defendants’ actions in locking down the high school

prevented any such other attacks from becoming imminent.

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b) The search of the house

According to plaintiff’s version of the facts, the defendant officers

handcuffed Chris Armijo, removed him to the porch of the home, and then

searched the home for approximately five minutes. Purportedly accepting these

facts as true 3, the majority characterizes, and ultimately blesses, the search of the

home as a protective sweep. This conclusion is without legal support.

In Maryland v. Buie, 494 U.S. 325, 327 (1990), the Supreme Court

explained that “[a] ‘protective sweep’ is a quick and limited search of premises,

incident to an arrest and conducted to protect the safety of police officers or

others. It is narrowly confined to a cursory visual inspection of those places in

which a person might be hiding.” Since Buie, some circuits have extended the

protective sweep doctrine to non-arrest situations, so long as the officers lawfully

entered the residence at issue. E.g., United States v. Caraballo, 595 F.3d 1214,

1224 (11th Cir. 2010) (citing cases).

Although the majority’s opinion suggests that this circuit has likewise

extended the protective sweep doctrine, that conclusion is far from clear.

Between Buie’s issuance in 2000 and December 2006, this court repeatedly

3

In discussing the search of the house, the majority draws inferences that

are neither favorable to plaintiff nor even argued by defendants. For example, the

majority infers, based on the defendants’ suspicions that Chris Armijo was a gang

member and that the bomb threats “were part of the back and forth between rival

gangs,” that “a reasonable officer could suspect that [Chris] Armijo might have

accomplices” inside plaintiff’s home. Maj. Op. at 13.

-16-

refused to extend the protective sweep doctrine beyond situations involving

arrests. See United States v. Torres-Castro, 470 F.3d 992, 997 (10th Cir. 2006)

(authorizing protective sweep that occurred prior to arrest of defendant, but

recognizing and adhering to the longstanding Tenth Circuit rule that “protective

sweeps must be performed incident to an arrest”). In January 2007, a panel of

this court suggested, notwithstanding existing Tenth Circuit precedent, that

“exigent circumstances may have justified a search of [the defendant’s] home as a

sweep for potential victims,” and remanded the case to the district court for

further consideration of that issue. United States v. Walker, 474 F.3d 1249, 1254

(10th Cir. 2007). At no point since the remand in Walker has this court revisited

the suggestion made in Walker.

Even assuming, for purposes of argument, that Walker extended the

protective sweep doctrine to non-arrest situations involving exigent

circumstances, the doctrine has no applicability to the case at hand. To begin

with, there has been no suggestion by defendants, let alone the production of any

evidence that would support a reasonable factual finding, that the officers at

plaintiff’s home were concerned that individuals other than Chris Armijo were in

the house and posed some type of threat. Indeed, defendants deny having

conducted any sweep or other search of the home. Further, even if defendants

had argued the necessity of performing a protective sweep, reasonable persons

could conclude that the length of the purported search, i.e., five minutes,

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exceeded the time necessary to accomplish the “cursory visual inspection” that

defines a true “protective sweep.” Buie, 494 U.S. at 327. Finally, although the

majority concludes that defendants “satisfactorily confined the search to only

those places inside the home where an emergency would reasonably be

associated,” Maj. Op. at 14 (internal quotations and citation omitted), the truth of

the matter is that we simply don’t know at this point what the scope of the alleged

search was. As noted, defendants wholly deny conducting any search of

plaintiff’s home. In contrast, Chris Armijo’s affidavit, submitted by plaintiff in

opposition to defendants’ motion for summary judgment, indicates that “[o]ne or

more police officers pulled [him] out of bed” and “[o]ne of the officers

handcuffed [him] and took [him] outside to the porch” while the other officers

went back inside the house for approximately five minutes. App. at 99. Thus,

genuine issues of material fact exist as to the scope of the alleged search.

c) The seizure of Chris Armijo

Plaintiff alleges that Chris Armijo was illegally seized by the defendant

officers when he was handcuffed, removed to the porch of the home, and detained

while the officers conducted a search of his home. Astoundingly, the majority

concludes that this was not an arrest, but rather a permissible “stop” under Terry. 4

4

To the extent the parties in this case suggest that the seizure of Chris

Armijo was a Terry stop, they are obviously mistaken, and we are in no way

bound by their positions. E.g., Harsco Corp. v. Renner, 475 F.3d 1179, 1190

(10th Cir. 2007) (“To be sure, this court is not bound by the parties’ stipulations

-18-

At issue in Terry was the constitutionality of a police officer’s “on-the-

street stop, interrogat[ion] and pat down for weapons” of individuals he had

observed and suspected of planning to rob a nearby store. 392 U.S. at 12. In

addressing these issues, the Court noted it was “deal[ing] . . . with an entire rubric

of police conduct — necessarily swift action predicated upon the on-the-spot

observations of the officer on the beat — which historically ha[d] not been, and

as a practical matter could not be, subjected to the warrant procedure.” 392 U.S.

at 20. Focusing first on the officer’s decision to approach and interrogate the

men, the Court concluded the officer was “discharging” a “legitimate

investigative function,” i.e., he approached the men “for purposes of investigating

possibly criminal behavior even though there [wa]s no probable cause to make an

arrest.” Id. at 22. As for the officer’s pat down of one of the individuals in

particular, the Court “conclude[d] that there must be a narrowly drawn authority

to permit a reasonable search for weapons for the protection of the police officer,

where he has reason to believe that he is dealing with an armed and dangerous

individual, regardless of whether he has probable cause to arrest the individual for

a crime.” Id. at 27. In other words, the Court stated, “[t]he officer need not be

absolutely certain that the individual is armed; the issue is whether a reasonably

prudent man in the circumstances would be warranted in the belief that his safety

regarding questions of law . . . .”).

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or that of others was in danger.” Id.

Not surprisingly, we recently emphasized that “Terry generally does not

apply within one’s home.” Harman v. Pollock, 586 F.3d 1254, 1262 n.2 (10th

Cir. 2009). In doing so, we cited with approval the Ninth Circuit’s oft-repeated

explanation that “Terry’s twin rationales for a brief investigatory detention — the

evasive nature of the activities police observe on the street and the limited nature

of the intrusion — appear to be inapplicable to an encounter at a suspect’s home.”

United States v. Washington, 387 F.3d 1060, 1067 (9th Cir. 2004) (citation

omitted). In other words, we recognized, in pertinent part, the longstanding

principle that the reasonable expectation of privacy in one’s home is far greater

than the expectation of privacy one has in activities conducted in public. E.g.,

United States v. Knotts, 460 U.S. 276, 281 (1983) (“A person travelling in an

automobile on public thoroughfares has no reasonable expectation of privacy in

his movements from one place to another.”).

Although the majority pays lip service to Harman, it nevertheless asserts

that “when officers search a house pursuant to a warrant, they may detain an

occupant if they have reasonable articulable suspicion under Terry.” Maj. Op. at

15. But the sole authority cited by the majority, Michigan v. Summers, 452 U.S.

692 (1981), simply does not support that proposition. In Summers, the question

at issue was the constitutionality of the detention of an individual who was

observed leaving a home that was about to be searched pursuant to a warrant.

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The detention began outside the home and continued, inside the home, while the

police searched the premises. Nowhere in Summers did the Court indicate that

the detention was authorized by Terry. Rather, the Court explained that “[i]f the

evidence that a citizen’s residence is harboring contraband is sufficient to

persuade a judicial officer that an invasion of the citizen’s privacy is justified, it

is constitutionally reasonable to require that citizen to remain while officers of

the law execute a valid warrant to search his home.” Id. at 704-05. “Thus, for

Fourth Amendment purposes, [the Court] h[e]ld that a warrant to search for

contraband founded on probable cause implicitly carries with it the limited

authority to detain the occupants of the premises while a proper search is

conducted.” Id. at 705.

The majority also suggests that “[j]ust as exigent circumstances permit a

warrantless home entry, emergencies justify a stop in the home.” Maj. Op. at 15.

But again, the sole authority cited by the majority in support of this proposition,

i.e., Walker, 474 F.3d at 1252-53, says nothing of the sort. To be sure, Walker

notes that “[a] warrantless entry into a home may be justified . . . in certain

exceptional circumstances,” and proceeds to cite three Supreme Court cases that

either support the general principle or provide examples of circumstances in

which warrantless entry is justified. Id. (citing Coolidge v. New Hampshire, 403

U.S. 443, 474-75 (1971); Brigham City, 547 U.S. at 403; Georgia v. Randolph,

547 U.S. 103, 116 n.6 (2006)). But nowhere does Walker remotely suggest, let

-21-

alone hold, that “emergencies justify a stop in the home.” Maj. Op at 15.

Consequently, the majority’s suggestion that there are “strict rules governing

warrantless entries enabling ordinary investigative seizures,” id. at 16, but “more

flexible” rules governing “seizures supported by exigent circumstances,” id. at 17,

is simply wrong.

At bottom, it is absurd to suggest that the defendant officers’ seizure of

Chris Armijo was justified under Terry. The undisputed evidence in this case

indicates that the defendant officers, after conducting an initial investigation,

believed that Chris Armijo was responsible for the two bomb threats and they

proceeded to plaintiff’s home intending to interview him and examine his cell

phone. It is further undisputed that the defendant officers did not take the time to

obtain a search warrant for plaintiff’s home or an arrest warrant for Chris Armijo.

Consequently, under clearly established federal law, the only way they could

enter plaintiff’s home was by consent, which did not occur, or by way of a

combination of probable cause and exigent circumstances. E.g., Kirk, 536 U.S. at

638; Payton, 445 U.S. at 587-88; United States v. Reeves, 524 F.3d 1161, 1166

(10th Cir. 2008) (noting that “Payton’s protections apply to all Fourth

Amendment seizures of persons inside their homes,” and that “labeling an

encounter in the home as either an investigatory stop or an arrest is meaningless

because Payton’s requirements apply to all seizures”).

Unfortunately, the majority ignores these well-established principles and

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reaches a conclusion that, until rightly overturned, threatens to undermine critical

Fourth Amendment protections by essentially eviscerating any constitutional

distinction between a law enforcement officer entering a residence to conduct an

investigation and a law enforcement officer stopping a suspect on the street for

questioning.

IV

Plaintiff alleges that defendants violated the Fourth Amendment when they

entered her home without a warrant. Although exigency based on bomb threats is

alleged by defendants as the basis for their warrantless entry into plaintiff’s

home, the direction twice given by Hook to Principal Aranda to keep the students

in their school building places the factual basis for defendants’ alleged exigency

into dispute. This factual dispute should result in our dismissal of this appeal for

lack of jurisdiction.

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