Petition for Writ of Certiorari — Stege v. Girard

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NOV 710 1993

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

JASON STEGE and JUSTIN STEGE,

Petitioners

Vv.

C. JOSEPH GIRARD and MITCHELL B.

TRIMMER,

Respondeprts.

Petition for a Writ of Certiorari

to the United States

Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Thomas J. Cruse

Counsel of Record for Petitioners

555 Oppenheimer, Suite 101

Los Alamos, NM 87544

(505) 662-3911

i

QUESTIONS PRESENTED FOR REVIEW

(1) Has qualified immunity become an

impervious shield for police officers who

violate established constitutional rights?

(2) Has the exigent circumstances

exception dispensed with the warrant

requirement of the Fourth Amendment?

The Decision of the Tenth Circuit Court of

Appeals finds that the Defendants are entitled to

qualified immunity because “the law at the time of this

incident did not clearly establish whether these offenses

were sufficient to justify a warrantless entry based upon

probable cause and exigent circumstances.” The

offenses referred to are “disorderly conduct and the

possession, by and the provision of liquor and alcoholic

beverages to, those under age 21, which are petty

misdemeanors.” The Decision went on to state that

“the offense of contributing to the delinquency of a

minor, a fourth degree felony... was also implicated”.

This statement is in error because it overlooks the fact

that Lt. Girard, the officer in charge who ordered the

entry into the Stege home, stated in his affidavit filed

February 14, 1992 at paragraph 7 that “after entering

the residence and considering the circumstances |

considered that contributing to the delinquency of

minors might be an appropriate charge against the

il

Stege brothers. (emphasis added) This Court evaluates

Defendants’ actions based on the facts known to

Defendants before they made the challenged entry into

the Stege home. It is also important to note that

Defendants Girard or Trimmer did not charge any

person at any time with contributing to the delinquency

of a minor and no mention of such a charge is found in

any of the police reports but rather first appears in the

affidavit prepared to resist Plaintiff’s motion for

summary judgment.

TABLE OF CONTENTS

Page

Questions Presented for Review ........... i

Table of Contents, Statutes, and

Other Authorities Cited ........... . ti

Jurisdiction and Prior Appeals ........... l

Constitutional Provision .............. l

ek ES a ra 2

The Clearly Established Law ............ 5

ee ee eee 10

Application of the Facts to the

Rule and Exception ............... 16

eee pide ksh we 0 8 64 23

APPELLANTS’ APPENDIX

Judgment in a Civil Case filed in the

United States District Court for the

District of New Mexico on

ECE, ctaceseasesesices l

Order and Judgment entered in the

United States Court of Appeals for the

Tenth Circuit on June 29,1993 ....... 4

Order and Judgment entered in the

United States Court of Appeals for the

Tenth Circuit on August 23,1993 ..... 9

iV

TABLE OF AUTHORITIES

Cases

Bledsoe v. Garcia, 742 F.2d 1237, 1241

CE ee ak a wa wee we 14

i Vv Ww hire,

403 U.S. 443, 91 S.Ct.

2022 L.Ed.2d 564 (1971) ... 9, 14, 15, 23

Johnson v. United States, 333 U.S. 10,

13-14, 68 S.Ct. 367, 369,

I en ad x

McDonald v. United States, 335 U.S. 451,

69 S.Ct. 191, 93 L.Ed. 153 (1948) ..... ll

Payton v. New York, 445 U.S. 573,

100 S.Ct. 1371, 63 L.Ed.2d

eee as ba es ee 5, 6, 7, 9, 10, 11

v. Uni 451 U.S. 204,

101 S.Ct. 1642, 68 L.Ed.2d 38

CE aaa cle a ane oa alas aaa 15

United States c. Aquino, 836 F.2d 1268

IE lia eae Se sa acd ace 14, 16, 17, 20, 23

U.S. v. Butler (Billy Deon), F.2d

1992 WL 341796 (10th Cir.(Ok1.),

Nov 23, 1992 (No. 91-7128) ......... 23

United States v. Carr, 939 F.2d 442

Ce, SED so ss aos os 16, 17, 18, 19

United States v, Chavez, 812 F.2d 1295

4 Le . , aaaRaoeran are aan 15, 21

Vv

United States v. Mabry, 809 F.2d 671

( Re | rere 15

United States v. Mendoza-Salgado, 964 F.2d 993,

rg Le S74 20

United States v. Smith, 797 F.2d 836,

itt Le a, | | 22

ni tates v. Unit tates District

407 U.S. 297, 313,

92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 . 8, 10

Vale v. Louisiana, 399 U.S. 30, 34, 90

S.Ct. 1969, 1971, 26 L.Ed.2d 409

Pe cae ee ee eee eee 15

Welsh v. Wisconsin, 466 U.S. 740,

104 S.Ct 2091 80 L.Ed.2

Ce Sere are 10, 11, 13, 14

Statutes

re foe s.r Erne l

Section 30-22-1D, NMSA 1978 Comp. ..... 3

Section 30-20-1, NMSA 1978 Comp. ...... 4

Section 30-20-1A, NMSA 1978 Comp. ..... 17

Section 60-7B-1(A)(4), NMSA 1978 Comp... 4

Section 60-7B-1(D), NMSA 1978 Comp..... 17

Section 28-6-1, NMSA 1978 Comp. ....... 18

Section 30-31-20, NMSA 1978 Comp. ..... 18

Section 30-31-22, NMSA 1978 Comp. ..... 18

This is an appeal of an action for violation of

Federal Civil Rights. Jurisdiction of the district court

was invoked under 28 U.S.C. 1331 and was not

disputed below. This is an appeal from the Final

Decision of the District Court entered on October 22.

1992 (Appendix, Page 1) the Notice of Appeal was filed

October 30, 1992. The Tenth Circuit Court of Appeals

entered its Order and Judgment on June 29, 1993

(Appendix, Page 3) the Tenth Circuit Court of Appeals

entered an Order Denying Appellants’ Petition for

Rehearing with Suggestion for Rehearing En Banc on

August 23, 1993 (Appendix, Page 8).

CONSTITUTIONAL PROVISION

“Amendment IV. The right of the people to be

secure in their persons, houses, papers and effects

against reasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probably cause, supported by Oath or affirmation, and

particularly describing the place to be searched and

persons or things to be seized.”

2

THE FACTS

The parties in their initial Pre-Trial Report , the

Pre-Trial Order and at trial stipulated to the following

facts:

‘ On Friday, June 29, 1991, at

approximately 11:43 p.m. GIRARD and TRIMMER

along with other officers responded to a report of a loud

party in the 3200 block of Walnut Street in Los Alamos,

Los Alamos County, New Mexico.

y & Upon TRIMMER’s arrival at the scene

he heard several people yelling loudly inside of 3272 A

Walnut Street.

3. TRIMMER and GIRARD went to the

front door of the residence.

4. TRIMMER looked in the window of the

front door and observed an individual later identified as

David Danforth (“Danforth”) who he knew to be under

the age of 21 years.

B TRIMMER observed Danforth open a

can of Miller Genuine Draft beer.

6. TRIMMER observed Eric Hall (“Hall’’)

sitting on a couch in the living room playing cards.

There were several open beer containers in front of Hall

on the table he was playing on. TRIMMER knew Hall

to be under the age of 21 at the time.

7. TRIMMER told GIRARD that he could

see an individual who he recognized to be a minor with

a beer can in his hand. GIRARD told TRIMMER to

knock on the door.

8. Upon TRIMMER knocking on the door

there was a shout of “cops” from inside the residence

and many footsteps could be heard running toward the

back of the house and other footsteps going up a

Stairway.

_ The door was opened by JASON.

JASON was informed that a minor had been observed

drinking in the residence and that the police were

coming in. JASON blocked the door denying entrance

to GIRARD and TRIMMER and told GIRARD and

TRIMMER that they could not enter the house.

10. GIRARD and TRIMMER told JASON

that they were coming in and ordered him to move.

11. | JASON continued to block the door.

12. GIRARD and TRIMMER pushed the

door open as JASON continued to try to force the door

closed.

13. As soon as GIRARD and TRIMMER

entered the house, TRIMMER placed JASON under

arrest for resisting the lawful order of a police officer

contrary to Section 30-22-1D, NMSA 1978 Comp.

4

14. TRIMMER then made contact with

JUSTIN who informed him that he also lived in the

house. TRIMMER then placed JUSTIN under arrest

for buying, selling, or giving alcohol to minors contrary

to Section 60-7B-1(A)(4), NMSA 1978 Comp.

JUSTIN and JASON were then both hand-cuffed and

placed on a couch in the living room.

15. JASON and JUSTIN stated to

TRIMMER that they had not given any alcohol to

anyone.

16. TRIMMER informed them by having

alcohol on the premises and permitting minors and

juveniles to consume the alcohol on the premises

constituted the charge. JASON and JUSTIN were

transported to the Los Alamos Police Department and

booked at the County jail. At that ttme TRIMMER

informed JASON and JUSTIN that he was also

charging them with disorderly conduct because of the

initial complaint and the loud profane yelling he had

heard coming from their residence contrary to Section

30-20-1, NMSA 1978 Comp.

17. The Magistrate Judge for the County of

Los Alamos Marthanne Reinhard was then contacted

and JASON and JUSTIN were released from jail on

bond.

5

18. JASON was tried before a jury of six

persons in the Magistrate Court of Los Alamos County

on August 23, 1991.

19. At the time TRIMMER and GIRARD

took the above actions they were acting under the color

of the state law specified above.

THE CLEARLY ESTABLISHED LAW

William Pitt the Elder in the 1700’s in an.

address to the House of Commons set forth the basic

principle of common law in regard to the sanctity of a

person’s home:

“The poorest man may, in his cottage,

bid defiance to all the forces of the

Crown. It may be frail; it’s roof may

shake; the wind may blow through it;

the storm may enter; the rain may enter,

but the King of England may not enter;

all his forces dares not cross the

threshold of the ruined tenement.” The

Right of the People to Be Secure,

Charles E. Moylan, Jr., National

College of District Attorneys, Second

Edition.

This Court in a decision written by Mr. Justice

Stevens in Payton v. New York reviewed the history of

the adoption of this principle of law in our country.

6

“Tt is familiar history that indiscriminate

searches and seizures conducted under

the authority of ‘general warrants’ were

the immediate evils that motivated the

framing and adoption of the Fourth

Amendment.”

The Payton Court noted that:

"Vivid in the memory of the newly

independent Americans were those

general warrants known as writs of

assistance under which officers of the

Crown had so bedeviled the colonists.

The hated writs of assistance had given

customs officials blanket authority to

search where they pleased for goods

imported in violation of British tax laws.

They were denounced by James Otis as

‘the worst instrument of arbitrary

power, the most destructive of English

liberty, and the fundamental principles

of law, that ever was found in an

English law book,’ because they placed

‘the liberty of every man in the hands of

every petty officer.' The historic

occasion of that denunciation, in 1761 at

Boston, has been characterized as

‘perhaps the most prominent event

which inaugurated the resistance of the

colonies to the oppressions of the

mother country. “Then and there,’ said

John Adams, ‘then and there was the

first scene of the first act of opposition

to the arbitrary claims of Great Britain.

Then and there the child Independence

,

was born’.

7

The Payton Court described the adoption of the Fourth

Amendment:

“Indeed, as originally proposed in the

House of Representatives, the draft

contained only one clause, which

directly imposed limitations on the

issuance of warrants, but imposed no

express restrictions on warrantless

searches or seizures. As it was

ultimately adopted, however, the

Amendment contained two separate

clauses, the first protecting the basic

right to be free from unreasonable

searches and seizures and the second

requiring that warrants be particular and

supported by probable cause...”

The Amendment provides:

"The right of the people to be secure in

their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated, and no

Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation, and particularly describing

the place to be searched, and the persons

Or things to be seized."

The Payton Court went on to state that:

“Tt is thus perfectly clear that the evil the

Amendment was designed to prevent was

broader than the abuse of a general

8

warrant. Unreasonable searches or

seizures conducted without any warrant

at all are condemned by the plain

language of the first clause of the

Amendment ... As the Court reiterated

just a few years ago, the ‘physical entry

of the home is the chief evil against

which the wording of the Fourth

Amendment is directed.’ United States

vy. United States District Court, 407

U.S. 297, 313, 92 S.Ct. 2125, 2134,

32 L.Ed.2d 752. And we have long

adhered to the view that the warrant

procedure minimizes the danger of

needless intrusions of that sort. As Mr.

Justice Jackson so cogently observed in

Johnson v. United States, 333 U.S. 10,

13-14, 68 S.Ct. 367, 369, 92 L.Ed.

436: ‘The point of the Fourth

Amendment, which often is not grasped

by zealous officers, is not that it denies

law enforcement the support of the usual

inferences which reasonable men draw

from evidence. Its protection consists in

requiring that those inferences be drawn

by a neutral and detached magistrate

instead of being judged by the officer

engaged in the often competitive

enterprise of ferreting out crime. Any

assumption that evidence sufficient to

Support a magistrate's disinterested

determination to issue a search warrant

will justify the officers in making a

search without a warrant would reduce

the Amendment to a nullity and leave the

people's homes secure only in the

discretion of police officers. Crime,

even in the privacy of one's own

quarters, is, of course, of grave concern

to society, and the law allows such

crime to be reached on proper showing.

The nght of officers to thrust themselves

into a home is also a grave concern, not

only to the individual but to a society

which chooses to dwell in reasonable

security and freedom from surveillance.

When the right of privacy must

reasonably yield to the right of search is,

as a rule, to be decided by a judicial

officer, not by a policeman or

Government enforcement agent.”

The Payton Court then stated:

“It is a ‘basic principle of Fourth

Amendment law’ that searches and

seizures inside a home without a warrant

are presumptively unreasonable. As the

Court stated in Coolidge v. New

Hampshire ‘Both sides to the

controversy appear to recognize a

distinction between searches and

seizures that take place on a man's

property--his home or office--and those

carried out elsewhere. It is accepted, at

least as a matter of principle, that a

search or seizure carried out on a

suspect's premises without a warrant is

per se unreasonable, unless the police

can show that it falls within one of a

carefully defined set of exceptions based

on the presence of ‘exigent

> 99>

circumstances’.

10

THE EXCEPTION

This Court in Welsh v. Wisconsin, 466 U.S.

740, 104 S.Ct. 2091 80 L.Ed.2 732 (1984) applied the

above principles to facts very similar to those stipulated

to by the parties when it held that warrantless, night

time entry into a home to arrest an individual for driving

under the influence of an intoxicant was prohibited by

the Fourth Amendment.

“Consistently with these

long-recognized principles, the Court

decided in Payton v. New York, supra,

that warrantless felony arrests in the

home are prohibited by the Fourth

Amendment, absent probable cause and

exigent circumstances. Id., 445 U.S.,

at 583-590, 100 S.Ct., at 1378, 1382.

At the same time, the Court declined to

consider the scope of any exception for

exigent circumstances that might justify

warrantless home arrests, id., at 583,

100 S.Ct., at 1378, thereby leaving to

the lower courts the initial application of

the exigent-circumstances exception.

Prior decisions of this Court, however,

have emphasized that exceptions to the

warrant requirement are ‘few in number

and carefully delineated,’ United States

v. United States District Court, 407

U. S., at 318, 92 S.Ct., at 2137, and

that the police bear a heavy burden when

attempting to demonstrate an urgent

need that might justify warrantless

searches or arrests.”

1]

The Welsh Court at page 750 went on to state:

“Our hesitation in finding exigent

circumstances, especially when

warrantless arrests in the home are at

issue, is especially appropriate when the

underlying offense for which there is

probable cause to arrest is relatively

minor. Before agents of the government

may invade the sanctity of the home, the

burden is on the government to

demonstrate exigent circumstances that

overcome the presumption of

unreasonableness that attaches to all

warrantless home entries. See Payton

v. New York, supra, 445 U.S., at 586,

100 S.Ct., at 1380. When the

government's interest is only to arrest

for a minor offense, that presumption of

unreasonableness is difficult to rebut,

and the government usually should be

allowed to make such arrests only with a

warrant issued upon probable cause by a

neutral and detached magistrate. Even

the dissenters in Payton, although

believing that warrantless home arrests

are not prohibited by the Fourth

Amendment, recognized the importance

of the felony limitation on such arrests.

See 445 U.S., at 603, 616-617, 100

S.Ct., at 1388, 1395-1396 (WHITE, J.,

dissenting) (“The felony requirement

guards against abusive or arbitrary

enforcement and ensures that invasions

of the home occur only in case of the

most serious crimes.’). This is not a

novel idea. Writing in concurrence in

vy. Uni , 335 U.S.

451, 69 S.Ct. 191, 93 L.Ed. 153

12

(1948), Justice Jackson explained why a

finding of exigent circumstances to

justify a warrantless home entry should

-be severely restricted when only a minor

offense has been committed:

“Even if one were to conclude that

urgent circumstances might justify a

forced entry without a warrant, no such

emergency was present in this case.

This method of law enforcement

displays a shocking lack of all sense of

proportion. Whether there is reasonable

necessity for a search without waiting to

obtain a warrant certainly depends

somewhat upon the gravity of the

offense thought to be in progress as well

as the hazards of the method of

attempting to reach it.... It is to me a

shocking proposition that private

homes, even quarters in a tenement,

may be indiscriminately invaded at the

discretion of any suspicious police

officer engaged in following up offenses

that involve no violence or threats of it.

While I should be human enough to

apply the letter of the law with some

indulgence to officers acting to deal with

threats or crimes of violence which

endanger life or security, it is notable

that few of the searches found by this

Court to be unlawful dealt with that

category of crime.... While the

enterprise of parting fools from their

money by the 'numbers' lottery is one

that ought to be suppressed, I do not

think that its suppression is more

important to society than the security of

the people against unreasonable

searches and seizures. When an officer

13

\

undertakes to act as his own magistrate,

he ought to be in a position to justify it

by pointing to some real immediate and

serious consequences if he postponed

action to get a_ warrant." Id., at

459-460, 69 S.Ct., at 195-196

(Jackson, J., concurring)

The Welsh Court then surveyed various

holdings of the lower courts and found at page 751 that:

“most have refused to permit

warrantless home _ arrests for

nonfelonious crimes.”

The Welsh Court then stated:

‘We therefore conclude that the common

sense approach utilized by most lower

courts is required by the Fourth

Amendment prohibition’ on

‘unreasonable searches and seizures,’

and hold that an important factor to be

considered when determining whether

any exigency exists is the gravity of the

underlying offense for which the arrest

is being made. Moreover, although no

exigency is created simply because there

is probable cause to believe that a

serious crime has been committed, see

Payton, supra, application of the

exigent-circumstances exception in the

context of a home entry should rarely be

sanctioned when there is probable cause

to believe that only a minor offense,

such as the kind at issue in this case, has

been committed.”

14

The Tenth Circuit’s decision relies on the case

of Bledsoe vs. Garcia, 742 F.2d 1237, 1241 (10th Cir.

1984) which was filed three months after this Court

announced its decision is Welsh. The Tenth Circuit in

Bledsoe found that it was appropriate for policemen to

pursue a sailor who had just admitted to them while he

was outside his home that he was AWOL and who then

fled into his home. The Bledsoe Court stated “the

unauthorized absence from the military unit for almost

two months is a serious offense.” Four years later

(and three years before the invasion of the Stege home)

the Tenth Circuit in the case of United States v. Aquino

, 836 F.2d 1268 (1988) in applying Welsh established

the rule in that Circuit when it stated at page 1270 that:

" “(T]he most basic constitutional rule’

in the search and seizure area is that

exceptions to the warrant requirement

must be ‘specifically established,’ ‘well

delineated’ and ‘jealously and carefully

drawn.’ [FN3]

ire, 403 U.S. 443, 454-55, 91

S.Ct. 2022, 2032, 29 L.Ed.2d 564

(1971). The notion that emergency

circumstances may in appropriate cases

make a warrantless search constitutional

if probable cause exists is a clearly

established exception to the warrant

requirement. Welch v. Wisconsin, 466

U.S. 740, 749-50, 104 S.Ct. 2091,

2097, 80 L.Ed.2d 732 (1984). The

15

contours of a sufficient emergency,

however, remain unclear. See

Coolidge, 403 U.S. at 455, 91 S.Ct. at

2032 (exception to warrant requirement

requires ‘that the exigencies of the

Situation made that course imperative’).

Because this is the third drug

investigation/exigent circumstance case

to reach this court in the past year, see

United States v. Chavez, 812 F.2d yp

(10th Cir. 1987);

Mabry, 809 F.2d 671 (10th Cir. 1987),

we examine the question closely. We

begin by exploring the relevant Supreme

Court pronouncements on the issue.

When police seek to enter a home

without a warrant, the government bears

the burden of proving that sufficient

exigency exists. See Coolidge, 403

U.S. at 455, 91 S.Ct. at 2032; Vale v

Louisiana, 399 U.S. 30, 34, 90 S.Ct.

1969, 1971, 26 L.Ed.2d 409 (1970).

Because “fijt is a ‘basic principle of

Fourth Amendment law’ that searches

and seizures inside a home without a

warrant are presumptively

unreasonable,” Vv Ww

445 U.S. 573, 586, 100 S.Ct. 1371,

1380, 63 L.Ed.2d 639 (1980), this

burden is especially heavy when police

seek to enter a suspect's home even

pursuant to a legitimate seizure. See

Vale, 399 U.S. 30, 90 S.Ct. 1969, 26

L.Ed.2d 409 (proper street arrest

pursuant to a warrant does not justify

house search); Steagald v. United

States, 451 U.S. 204, 101 S.Ct. 1642,

68 L.Ed.2d 38 (1981) (search warrant

required to arrest individual in the home

16

of a third person); Payton, 445 U.S.

573, 100 S.Ct. 1371, 63 L.Ed.2d 639

(arrest warrant required to seize a person

in his own home).”

The Aquino Court then established the test for the Tenth

Circuit as follows:

“The Supreme Court cases discussed

above mandate the following

conclusions: An exception to the

warrant requirement that allows police

fearing the destruction of evidence to

enter the home of an unknown suspect

should be (1) pursuant to clear evidence

of probable cause, (2) available only for

serious crimes and in circumstances

where the destruction of the evidence is

likely, (3) limited in scope to the

minimum intrusion necessary to prevent

the destruction of evidence, and (4)

supported by clearly defined indicators

of exigency that are not subject to police

manipulation or abuse. Accordingly,

the test in this circuit requires probable

cause and exigent circumstances.”

APPLICATION OF THE FACTS TO THE

RULE AND EXCEPTION

Defendants below relied on United States v.

Carr ,939 F.2d 442, (10th Cir. 1991) as analogous to

the facts of this case to support their contention that their

warrantless entry of the Stege home and arrest of the

17

Plaintiffs was justified. Plaintiffs submit that Carr is a

good example of what is required of law enforcement

officers in the Tenth Circuit. Carr demonstrates the

failure of Defendants Girard and Trimmer to meet the

requirements of this Court and the Tenth Circuit. Using

the guidelines established in United States v. Acquino,

836 F.2d 1268 (10th Cir. 1988) the following is a

contrast between the Carr case and this case. The Carr

Court at page 1447 set forth the facts of that case.

A. Clear Evidence of Probable Cause. At

the point Defendants Girard and Trimmer decided to

enter the Stege home without a warrant their evidence

consisted of having observed an individual who Cpl.

Trimmer knew to be between the ages of 18 and 21 with

a can of beer in his hand. In addition Lt. Girard heard

“loud talking and music coming from the open

windows” . The possible offenses of minor in

possession of alcohol and disorderly conduct are both

petty misdemeanors under the laws of the State of New

‘Mexico (Sections 30-20-1A and 60-7B-1(D) NMSA

1978 Comp. Disorderly conduct under the statute is

defined as “engaging in violent, abusive, indecent,

profane, boisterous, unreasonably loud or otherwise

disorderly conduct which tends to disturb the peace”.

Since the loud talking and music could be heard by the

officers approaching the residence from open windows

—

18

on a summer night it is arguable whether the noise from

the party was unreasonably loud. Further, Section 60-

7B-1(D) makes it an offense for a minor to be in

possession of alcohol only “outside the presence of the

minor’s parent, guardian, adult spouse or adult person

into whose custody a Court has committed the minor for

the time”. Defendants from peeking in the Steges’

window could not be certain that either Mr. Danforth or

Mr. Hall’s parents vere not present at the party

B. ircumstanc Involvin riou

rimes and Where the Destruction of Evidence i

Likely. The officers in the Carr case suspected the

occupants of a motel room were trafficking in cocaine (a

second degree felony under Section 30-31-20 NMSA

1978 Comp.) and distributing Phencyclidine (a third

degree felony under Section 30-31-22 NMSA 1978

Comp.). The Defendants have maintained that David

Danforth, a 19 year old adult (Criminal Complaint,

Section 28-6-1 NMSA 1978 Comp.) holding a can of

Miller beer in his hand and presumably talking loudly is

in the same class of “serious crime” offenders as the

defendants in Carr. This Court evaluates the actions of

the Defendants upon the basis of the evidence they had

prior to the entry of the Stege home not what evidence

was gained after the warrantless entry. If the facts of

this case support a definition of a serious crime, one

19

must ask what crime would not meet that definition? In

fact, Defendant Trimmer, under examination by his own

counsel, acknowledged that Los Alamos does not have

what is generally considered serious crime such as

crimes of violence.

. Limited in Scope to the Minimum

Intrusion Necessary to Prevent Destruction of Evidence.

The officers in the Carr case stated that they decided to

speak with the occupants of Room 230 “in the hope that

the occupants would consent to a search of the motel

room.” The Stipulated Facts and Defendant Trimmer’s

testimony demonstrate that Jason clearly manifested to

the Defendants that they did not have consent to enter

his home. The Carr officers acknowledged that they

obtained a pass key to Room 230 and that they planned

to use the key to gain entry in order to detain the

occupants if the occupants should refuse permission to

search the motel room and had that occurred the officers

planned to undertake a protective sweep and detain the

occupants until a search warrant could be obtained. The

officers in the Carr case after they entered the room

limited their actions to securing the room and suspects.

No search of the room was conducted until a search

warrant was obtained about two hours later. In

contrast, Defendants Girard and Trimmer have never

indicated that they even considered the need for

20

obtaining a search warrant either before or after their

entry into the Stege home. Rather, under Defendant

Girard’s orders the police arrested all 25 persons

present at the Stege residence and seized 70 open cans

and bottles of beer. The Tenth Circuit in United States

v. Mendoza-Salgado 964 F.2d 993, 1010 (10th

Cir.1992) recently expressed its concern in this regard:

“Although we do not decide the issue

here, we express our deep concern over

the agents’ failure to begin the warrant

process before entering Mr. Garcia's

house. This court has ‘never held that

police can automatically justify the

warrantless entry of a home merely by

engaging in a two-part drug transaction

and interrupting it after the first part.’

United States v. Aquino, 836 F.2d 1268,

1273 (10th Cir.1988). We note

that our previous cases involving exigent

circumstances have emphasized

that the poiice ‘began the process of

obtaining a warrant as soon as they had

probable cause.” Aquino, 836 F.2d at

1273-74. Here it appears agents had

several hours to initiate attempts to obtain

a warrant. As_ we noted in

Aquino, "[t]he officers’ failure to begin

the process of obtaining a warrant is

especially troubling in a case involving a

home, concerning as does the privacy

interests of innocent individuals who

might, as here, be living with the

suspected drug dealer." Id. at 1274.

_____Not only does proper observance of the

c—

21

warrant requirement protect individuals'

privacy interests, but it also prevents

police from needlessly jeopardizing the

government's case against suspected

drug dealers.” Id.; see also United

States v. Chavez, 812 F.2d 1295, 1300

(10th Cir. 1987).

It is interesting to note that the magistrate jury

had the similar criticism of the Defendants’ actions in

this case. The jury was required to consider the

lawfulness of Defendant Trimmer’s order to Jason

Stege that the police be allowed into the house in order

to determine Jason’s guilt or innocence on the charge of

resisting the lawful order of a police officer. The jury

convicted Jason of disorderly conduct but acquitted

Jason of the charges of resisting the lawful order of a

police officer and the charge of selling or giving alcohol

to minors. The jury requested and was granted an

opportunity to explain its verdict to the magistrate and

the parties. The jury’s rationale was that the entry of the

Stege home was illegal since the police had an

opportunity to seek a search warrant after they looked

into the window and before they knocked on the door.

The exigent circumstances claimed by the police did not

exist, according to the jury, since the evidence was

undisputed that the occupants of the home were

unaware of the presence of the police until after the

police knocked on the door.

22

D. Exigent Circumstances. Defendants

below argued that their warrantless entry into the Stege

residence was justified by their concern that evidence

was being destroyed, persons were attempting to escape

out the back door and that there was a possibility that

minors who had consumed alcohol would be driving on

the streets of Los Alamos. A review of the Stipulated

Facts and the record simply does not support this

contention. With the police surrounding the residence

how would the occupants of the residence be able to

destroy or dispose of 70 cans of beer? How would they

flee? In fact, those who did attempt to flee were

detained by the police in the back. With the Stege home

surrounded how could the persons present drive on the

streets of Los Alamos without first passing police

inspection outside the home. Indeed, on page 1 of the

Lt. Girard’s Narrative Report of the incident dated July

2, 1991, he states “no one in the residence appeared to

be impaired and after they were identified, they were

told to leave”. The Tenth Circuit has defined exigent

circumstances in United States v. Smith, 797 F.2d 836,

840 (10th Cir.1986) as arising when:

(1) the law enforcement officers ... have

reasonable grounds to believe that there

is immediate need to protect their lives

or others or their property or that of

others, (2) the search [is not] motivated

by an intent to arrest and seize evidence,

23

and (3) there [is] some reasonable basis,

approaching probable cause, to associate

an emergency with the area or place to

be searched. U.S. v. Butler (Billy

Deon), --- F.2d ----, 1992 WL 341796

(10th Cir.(Okl1.), Nov 23, 1992) (NO.

91-7128)

The trial court in ruling for the Defendants

found not only were they entitled to qualified immunity

but that their actions were lawful. To accept the court’s

ruling that Defendant’s actions were lawful would be

contrary to the rule that "[T]he most basic constitutional

rule" in the search and seizure area is that exceptions to

the warrant requirement must be "specifically

"w "

established," "well delineated" and "jealously and

carefully drawn." Coolidge v. New Hampshire, 403

U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d

564 (1971) United States v. Aquino , 836 F.2d 1268

(1988) .

CONCLUSION

Sir Edward Coke wrote in 1644 that “a man’s

house is his castle.” Perhaps we have to retire the

Fourth Amendment as a centuries old anachronism

unsuitable for today’s law and order society. We will

do so if police are able to utter the magic words “exigent

circumstances” like “open sesame” to dispense with the

warrant requirement for the entry into a person’s home.

24

We would likewise do so if we allow the words

“qualified immunity” to become an impervious shield

for officers who violate established constitutional rights.

Plainuffs-Appellants urge this Court to stop the Fourth

Amendment’s slide down the slippery slope of

exceptions into oblivion. The time has come for this

Court to give effect to its many pronouncements of the

sanctity of a person’s home and hold Defendants liable

for their unwarranted violation of Plaintiffs’ mghts to be

secure in their home.

Thomas J. Cruse

=a Record for Pestioners

fF 7

555 Oppenheimer, Suite 101

Los Alamos, NM 87544

(505) 662-3911

4

APPENDIX

l

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

JASON STEGE, JUSTIN STEGE

Plaintiffs-Appellants,

)

)

)

)

)

) ( No. CIV-

) 91-

) 1087-

) SC)

C. JOSEPH GIRARD, )

MITCHELL B. TRIMMER )

)

Defendants-Appellees. ) Filed

) 10/22/92

IUDGMENT IN_A CIVIL CASE

This action came to trial before the Court. The

issues have been heard and a decision has been

rendered.

IT IS ORDERED AND ADJUDGED that

defendant’s oral motion for judgment as a matter of law

at the close of plaintiff’s evidence is GRANTED, and

plainuffs JASON STEGE and JUSTIN STEGE to take

nothing and the action is dismissed on the merits for the

reasons outlined in the memorandum of the court

(attached). Defendants C. JOSEPH GIRARD and

MITCHELL B. TRIMMER to recover their costs of

action.

2

Dated this 21st day of October, 1992 at Santa

Fe, New Mexico.

United States

District Judge

MOTION TO DISMISS

Based upon the evidence presented by the

plaintiffs in their case-in-chief and the previously

stipulated facts, the court finds that the defendants’

motion to dismiss on the basis of qualified immunity

must be granted and the case dismissed.

The law is clearly established that there must be

probable cause and exigent circumstances to do a

warrantless search and seizure. Further, police officers

must have probable cause to arrest individuals without a

warrant.

Under the facts of this case, it was objectively

legally reasonable for the defendants to believe they

could enter the Stege residence and seize evidence

without a warrant, and arrest the plaintiffs for certain

criminal offenses without a warrant. The police officers

saw evidence of serious offenses being committed

within the house with minors consuming and possibly

being furnished alcohol. When people began fleeing

3

after the officers knocked on the door, there was a

concern about the destruction of evidence as well as the

escape of the suspects. The defendants had observed

violations of the law both from outside the house and in

their presence to suggest to them that they had probable

Cause to arrest the plaintiffs.

By entering the Stege residence and arresting the

plaintiffs, a reasonable police offer would not have

believed he or she was violating the civil rights of the

plaintiffs. Based upon the facts before this court, it is

clear the defendants are entitled to qualified immunity.

The court, therefore, grants the defendants’

motion to dismiss. The plaintiffs’ motion for summary

judgment is denied.

Even if the defendants were not entitled to

qualified immunity, the court would direct a verdict for

the defendants. On the facts of this case, it is clear that

the police officers acted lawfully and there can be no

liability for their actions.

Spica

4

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JASON STEGE, JUSTIN STEGE )

)

Plaintiffs-Appellants, )

)

v. ) No. 92-2231

) (D.C. No. CIV-

) 91-1087-SC)

)

C. JOSEPH GIRARD, ) (D.N.M.)

MITCHELL B. TRIMMER )

)

Defendants-A ppellees. ) Filed 6/29/93

ORDER AND JUDGMENT*

Before SEYMOUR and TACHA, Circuit

Judge, and ROGERS,** Senior District Judge

**Honorable Richard D. Rogers, United

States District Judge for the District of

Kansas, sitting by designation.

After examining the briefs and appellate record,

this panel has determined unanimously that oral

* This order and judgment has no precedential value

and shall not be cited, or used by any court within the

Tenth Circuit, except for purposes of establishing the

doctrines of the law of the case, res judicata, or

collateral estoppel. 10th Cir. R. 36.3.

5

argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R

34.1.9. The case is therefore ordered submitted without

oral argument.

In this civil rights action, 42 U.S.C. § 1983,

plaintiffs appeal the district court’s decision directing a

verdict in favor of defendants following the close of

plainuffs’ case-in-chief. This litigation stems from an

incident during which defendants, Los Alamos, New

Mexico, police officers, entered plaintiffs’ home during

the course of a party involving underage individuals

drinking beer and arrested plaintiffs without either

search or arrest warrants. The district court determined

that defendants were entitled to qualified immunity and,

alternatively, that they were, as a matter of law, entitled

to judgment in their favor because they had acted

lawfully.

This court reviews a directed verdict de novo.

See First Sec. Bank v. Taylor, 964 F. 2d 1053, 1055

(10th Cir. 1992) (reviewing denial of directed verdict).

“A directed verdict is appropriate only if the evidence,

viewed in the light most favorable to the nonmoving

party, ‘points but one way and is susceptible to no

reasonable inferences supporting’ the nonmoving

party.” Riggs v. Scrivner, Inc.,, 927 F. 2d 1146 ,

1149 (10th Cir) (quoting Zimmerman v. First Fed. Sav.

6

& Loan Ass’n, 848 F.2d 1047, 1051 (10th Cir. 1988)),

cert. denied, 112 S. Ct. 196 (1991). Because we

conclude that defendants were entitled to qualified

immunity, we need not address whether defendants’

conduct was lawful.

“(Whether an official protected by qualified

immunity may be held personally liable for an allegedly

unlawful official action generally turns on the ‘objective

legal reasonableness’ of the action, . . . assessed in light

of the legal rules that were ‘clearly established’ at the

time it was taken.” Anderson v ighton, 483 U.S.

635, 639 (1987) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818, 819 (1982)). Once defendants asserted

qualified immunity, plaintiffs bore the burden of

establishing both that defendants’ alleged conduct

violated the law and that the law was clearly established

when the alleged violation occurred. See Patrick v.

Miller, 953 F.2d 1240, 1243 (10th Cir. 1992).

Because plaintiffs failed to establish that defendants’

alleged conduct violated law clearly established at the

time of this incident, defendants were entitled to

qualified immunity.

Plaintiffs argue, among other things, that the

offenses involved in this case are not sufficiently

serious to justify the warrantiess entry. Under New

Mexico law, the offenses implicated by these

7

circumstances include disorderly conduct and the

possession by, and the provision of liquor and alcoholic

beverages to, those under age twenty-one, which are

petty misdemeanors, see N.M. Stat. §§30-20-1, 60-7B-

1D, 60-7B-1.1F; see also N.M. Stat.§ 60-7A-25A

(persons violating any provision of New Mexico’s

Liquor Control Act that is not designated as a felony,

are guilty of a petty misdemeanor), punishable by not

more than six months’ imprisonment or a fine of no

more than $500, or both, see N.M. Stat. §31-19-1.

The offense of contributing to the delinquency of a

minor, a fourth degree felony, see N.M. Stat. §30-6-3,

punishable by eighteen months’ imprisonment and a

$5,000 fine, see N.M. Stat.§ 31-18-15, was also

implicated.

At the time of this incident, June 19, 1991, the

Supreme Court had held that a noncriminal civil

forfeiture offense for which no imprisonment was

possible was not a sufficiently serious offense to justify

a warrantless entry, despite the existence of probable

cause and exigent circumstances. Welsh v. Wisconsin,

466 U.S. 740, 754 (1984). Further, this court had held

that a misdemeanor punishable by less than one year’s

imprisonment could be a sufficiently serious offense to

justify a warrantless home entry. See Bledsoe v.

Garcia, 742 F.2d 1237, 12241 (10th Cir. 1984).

8

While the existence of clearly established law

does not require that there be relevant authority

addressing the specific circumstances presented in this

particular case, “[t]he contours of the nght must be

sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”

Anderson, 483 U.S. at 640. The law at the time of this

incident did not clearly establish whether these offenses

were sufficient to justify a warrantless entry based upon

probable cause and exigent circumstances. We,

therefore, agree with the district court that an objectively

reasonable officer could have believed that the

warrantless entry was lawful.

Plaintiffs’ remaining arguments are

unpersuasive. The judgment of the United States

District Court for the District of New Mexico, is,

therefore, AFFIRMED.

Entered for the Court

Deanell Reece Tacha

Circuit Judge

No. 92-2231,

Stege v. Girard

SEYMOUR, Circuit Judge, dissenting:

I dissent

9

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JASON STEGE, JUSTIN STEGE )

)

Plaintiffs-Appellants, )

)

) No. 92-

) 2231

)

C. JOSEPH GIRARD, )

MITCHELL B. TRIMMER )

)

)

Defendants-Appellees.

ORDER AND JUDGMENT*

Entered August 23, 1993

Before McKAY, Chief Judge, LOGAN,

SEYMOUR, MOORE, ANDERSON, TACHA,

BALDOCK, BRORBY, EBEL, and KELLY,

Circuit Judges, and ROGERS,* Senior

District Judge.

*Honorable Richard D. Rogers, United States

District Judge for the District of Kansas,

sitting by designation.

This matter is before the court on appellants’

petition for rehearing with suggestion for rehearing in

banc.

10

The materials submitted by appellants have been

reviewed by the members of the hearing panel, who

conclude that the original disposition was correct.

Judge Seymour, however, would grant rehearing. The

petition is, therefore, denied on the merits.

The petition have been denied on the merits by

the panel to which the case was submitted, the

suggestion for rehearing in banc was transmitted to all

the judges of the court in regular active service in

accordance with Rule 35 (b) of the Federal Rules of

Appellate Procedure. No member of the hearing panel

and no judge in regular active service on the court

having requested that the court be polled on rehearing in

banc, Rule 35, Federal Rules of Appellate Procedure,

the suggestion for rehearing in banc is denied.

Entered for the Court

ROBERT L. HOECKER

Clerk

By: Patrick Fisher

Chief Deputy Clerk