Appellate Case: 21-1110 Document: 010110642399 Date Filed: 02/08/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 8, 2022 _________________________________ Christopher M. Wolpert Clerk of Court JASON ALAN CAPPELLI; VINCENT C. TODD,
Plaintiffs - Appellants,
v. No. 21-1110 (D.C. No. 1:17-CV-01439-PAB-NRN) WILLIAM HOOVER, Sergeant, (D. Colo.) Lakewood Police Department; JIMMY TORSAK, Detective, Lakewood Police Department; MICHAEL GRIFFITH, Agent, Lakewood Police Department; JANNA SCHMMELS, Agent, Lakewood Police Department; JOHN HICKENLOOPER, Governor of the State of Colorado; RICK RAEMISCH, Executive Director of the Colorado Department of Corrections; JIM COOPER, a Community Parole Officer; MATTHEW STEGNER, Commander, Lakewood Police Department; THEODORE MCNITT, a Commander, Lakewood Police Department; JEFF SCHRADER, Sheriff of Jefferson County Colorado; MELISSA ROBERTS, Director of Adult Parole, Colorado Department of Corrections; SHEFALI PHILLIPS, a Community Parole Officer; WESLEY TRISSEL, a Community Parole Officer; DAN MCCASKY, Chief of Police, Lakewood Police Department
Defendants - Appellees. _________________________________ Appellate Case: 21-1110 Document: 010110642399 Date Filed: 02/08/2022 Page: 2
ORDER AND JUDGMENT* _________________________________
Before MATHESON, BALDOCK, and PHILLIPS, Circuit Judges. _________________________________
Jason Cappelli and Vincent Todd, a Colorado parolee and his sponsor, appeal
the district court’s entry of judgment against them on claims stemming from a search
of their home that led to Cappelli’s arrest for parole violations. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
Colorado released Cappelli from custody to live with Todd on parole. The
state conditioned this arrangement on Cappelli’s and Todd’s agreement to allow
Cappelli’s Community Parole Officer (CPO) to visit and search their house at any
time. Cappelli’s CPO, Defendant Matthew Stegner, did so on April 19, 2019.
Another CPO, Defendant Shefali Phillips, and officers from the Lakewood Police
Department accompanied him and participated in the search.
The officers found a video doorbell on the house and a stun gun inside Todd’s
locked bedroom. Stegner arrested Cappelli, alleging parole violations based on the
presence of these items on the premises.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 2 Appellate Case: 21-1110 Document: 010110642399 Date Filed: 02/08/2022 Page: 3
The parole board acquitted Cappelli of the parole violation charges. Cappelli
and Todd then sued under 42 U.S.C. § 1983 and the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. §§ 1961–1968. As relevant to this appeal, they
both claimed the search violated their Fourth Amendment rights because the officers
did not have a warrant and lacked reasonable suspicion either of them had committed
an offense. Cappelli also alleged that his detention violated his Fourth Amendment
rights because the officers lacked probable cause to believe he had committed a
parole violation, and that the procedures for returning a $30 booking fee collected
from him at the time of his arrest violated his Fourteenth Amendment due process
rights because they were too onerous.
Ruling on a motion to amend the complaint, the district court denied leave to
amend and ordered dismissal of all the claims except the unlawful search claims
against the Lakewood officers who participated in the search. It reasoned the
complaint did not, and with the proposed amendments would not, state any other
claims upon which relief could be granted. The court later granted summary
judgment in favor of the Lakewood officers by adopting the magistrate judge’s report
and recommendation and entered a final judgment in favor of all Defendants. This
appeal followed.
II. Discussion
We review de novo a district court’s dismissal for failure to state a claim. See
VDARE Found. v. City of Colo. Springs, 11 F.4th 1151, 1169 (10th Cir.), petition for
cert. filed (U.S. Dec. 23, 2021) (No. 21-933). “We generally review for abuse of
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discretion a district court’s denial of leave to amend a complaint . . . .” Johnson v.
Spencer, 950 F.3d 680, 720 (10th Cir. 2020) (brackets and internal quotation marks
omitted). But a “district court may deny leave to amend where amendment would be
futile.” Doe v. Woodard, 912 F.3d 1278, 1302 n.28 (10th Cir. 2019) (internal
quotation marks omitted). And “when [the district court’s] denial is based on a
determination that amendment would be futile, our review for abuse of discretion
includes de novo review of the legal basis for the finding of futility.” Johnson,
950 F.3d at 720 (internal quotation marks omitted).
“We review an order granting summary judgment de novo, giving no
deference to the district court’s decision and applying the same standards as the
district court.” Carlile v. Reliance Standard Life Ins. Co., 988 F.3d 1217, 1221
(10th Cir. 2021). “In doing so, we view the evidence and draw reasonable inferences
in the light most favorable to the nonmoving party.” Sinclair Wyo. Refin. Co. v.
A & B Builders, Ltd., 989 F.3d 747, 765 (10th Cir. 2021) (brackets and internal
quotation marks omitted). “The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A. Fourth Amendment Unlawful Search Claims
Cappelli and Todd claim CPOs Stegner and Phillips, and the Lakewood
officers, violated their Fourth Amendment rights by searching their home without a
warrant and without any reasonable suspicion to believe either Cappelli or Todd had
committed an offense.
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1. Dismissal of the Fourth Amendment Unlawful Search Claims Against Stegner and Phillips
The district court dismissed the claims against CPOs Stegner and Phillips
because under the totality-of-the-circumstances exception to the Fourth
Amendment’s warrant and probable cause requirements, “the Fourth Amendment
does not prohibit a police officer from conducting a suspicionless search of a
parolee,” Samson v. California, 547 U.S. 843, 857 (2006), at least where the search is
“authorized by state law,” United States v. Matthews, 928 F.3d 968, 976 (10th Cir.
2019) (internal quotation marks omitted).1 And the district court found that
Colorado law authorized CPOs Stegner and Phillips to conduct the search, citing
Colo. Rev. Stat. § 17-2-201(5)(f)(I)(D) and People v. McCullough, 6 P.3d 774, 778
(Colo. 2000), abrogated in part on other grounds by United States v. Knights,
534 U.S. 112 (2001).
Cappelli and Todd argue, without citation, that the district court erred in
reaching this conclusion because Colorado authority it relied on applies “only to
discretionary parole,” Aplts. Opening Br. at 9, and their complaint alleged Cappelli
was on “mandatory parole,” Aplts. App., vol. 2 at 12. But § 17-2-201(5)(f)(I)(D)
requires parolees to “permit residential visits by the [CPO], and allow the [CPO] to
make searches of his or her person, residence, or vehicle,” “[a]s a condition of every
1 To the extent Cappelli and Todd argue that an earlier case, United States v. Knights, 534 U.S. 112, 121–22 (2001), establishes a different rule—namely, that warrantless searches of a parolee’s home must be supported by a reasonable suspicion that the parolee engaged in prohibited conduct—we reject this argument as contrary to Samson. 5 Appellate Case: 21-1110 Document: 010110642399 Date Filed: 02/08/2022 Page: 6
parole.” (emphasis added). And McCullough makes no mention of a distinction
between mandatory and discretionary parole. It instead confirms that a parolee’s
consent to searches by the CPO must “be included in every parole agreement.”
6 P.3d at 778 (emphasis added). It also held that the law gives CPOs “authority to
conduct routine searches of a parolee and his possessions as part of their supervisory
authority and without requiring that they first possess reasonable grounds to believe
that a parole violation has occurred.” Id. (internal quotation marks omitted).
Because Colorado law authorized Stegner and Phillips to conduct the search
without any reasonable suspicion, we affirm the district court’s conclusion that the
complaint did not, and with the proposed amendments would not, state a viable
Fourth Amendment claim against these Defendants related to the search.
2. Grant of Summary Judgment to the Lakewood Police Officers on the Fourth Amendment Unlawful Search Claims
The district court granted summary judgment to the Lakewood officers by
applying the special-needs exception to the Fourth Amendment’s warrant and
probable cause requirements, whereby law enforcement officers can search a
parolee’s home without a warrant if they are “acting under the direction of the parole
officer.” United States v. Freeman, 479 F.3d 743, 748 (10th Cir. 2007). Under this
rule, a parole officer “cannot act as a ‘stalking horse’ on behalf of police to assist
police in evading the Fourth Amendment’s warrant requirement.” United States v.
McCarty, 82 F.3d 943, 947 (10th Cir. 1996).
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The district court found that the Lakewood police officers acted under CPO
Stegner’s direction and concomitantly that Stegner was not acting as a stalking horse
at the behest of the Lakewood officers. It relied, in part, on Stegner’s testimony that
he alone made the decision to search Cappelli and Todd’s house on the day in
question. It also relied on the Lakewood officers’ testimony that they were brought
in by Stegner as backup to assist with the search and Stegner’s testimony that he
instructed the Lakewood officers to search “for any violations or anything they were
concerned about,” Aplts. App., vol. 6 at 189.
Cappelli and Todd argue that the open-ended nature of Stegner’s instruction to
the Lakewood officers regarding the way they should conduct their search creates a
factual issue about whether Stegner acted as a stalking horse for the Lakewood
officers. We disagree. As the magistrate judge noted, this instruction reinforces
testimony from Stegner and the Lakewood officers that Stegner initiated the search
and that he brought the Lakewood officers in as backup to assist with the search. The
instruction does not support a reasonable inference that Stegner acted as a stalking
horse for the Lakewood officers to conduct an unlawful search.
Cappelli and Todd also argue the search by the Lakewood officers violated
their Fourth Amendment rights because it was not supported by a reasonable
suspicion that either of them had committed an offense. But as noted above, “the
Fourth Amendment does not prohibit a police officer from conducting a suspicionless
search of a parolee,” Samson, 547 U.S. at 857, if the search is “authorized by state
law,” Matthews, 928 F.3d at 976 (internal quotation marks omitted). And Colorado
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law permits police officers to participate in searches authorized by CPOs. See United
States v. Warren, 566 F.3d 1211, 1218 (10th Cir. 2009).
Cappelli and Todd finally argue the district court erred by granting summary
judgment to the Lakewood officers because their temporary disconnection of cables
connecting Todd’s computing equipment to the internet caused unnecessary damage
to property, rendering the search unreasonable under United States v. Ramirez,
523 U.S. 65, 71 (1998). But they did not make this argument in opposition to the
Lakewood officers’ summary judgment motion or in their objections to the
magistrate judge’s report and recommendation. We therefore do not consider it. See
Throupe v. Univ. of Denver, 988 F.3d 1243, 1254 (10th Cir. 2021) (“We will not
consider an argument that was not fully briefed and decided by the district court.”).
We affirm the district court’s grant of summary judgment to the Lakewood
officers.
B. Dismissal of Cappelli’s Fourth Amendment Unlawful Arrest Claim
Cappelli claims that his arrest violated his Fourth Amendment rights because
Stegner lacked probable cause to arrest him.
The district court agreed the complaint sufficiently alleged Stegner lacked
probable cause to arrest Cappelli. But it found no law clearly establishing that the
Fourth Amendment protects a parolee from arrest without probable cause. Cf.
Jenkins v. Currier, 514 F.3d 1030, 1033 (10th Cir. 2008) (“Most courts that have
considered the Fourth Amendment implications of seizing a parole violator have held
that a parolee remains in legal custody during the period of his parole and therefore
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that the retaking of a parole violator does not constitute an arrest for Fourth
Amendment purposes.”); Colo. Rev. Stat. § 17-22.5-203(2) (“Parole shall not be
construed in any sense to operate as a discharge of any inmate . . . but simply a
permit to [a paroled] inmate to go outside a correctional facility . . . .”). It therefore
applied the doctrine of qualified immunity to dismiss the unlawful arrest claim. See
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“The doctrine of qualified immunity
protects government 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.” (internal quotation marks omitted)).
Cappelli argues the district court erred by applying the doctrine of qualified
immunity because the doctrine does not apply absent a “case [that] specifically
addresses the . . . issue.” Aplts. Opening Br. at 12. But Cappelli has the burden to
“establish (1) the defendant violated a federal statutory or constitutional right and
(2) the right was clearly established at the time of the defendant’s conduct.” Ullery
v. Bradley, 949 F.3d 1282, 1289 (10th Cir. 2020). And Cappelli does not cite any
case, from any jurisdiction, holding that taking a parolee into custody constitutes an
arrest for purposes of the Fourth Amendment. Nor does he cite any case, from any
jurisdiction, holding that a parole officer must have probable cause or comply with
state law in order to take a parolee into custody without running afoul of the Fourth
Amendment. He has therefore not shown any error in the district court’s qualified
immunity ruling.
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His remaining argument that Stegner violated Colorado state law by taking
him into custody without probable cause is irrelevant to his § 1983 Fourth
Amendment claim. See Medina v. Cram, 252 F.3d 1124, 1133 (10th Cir. 2001)
(“[C]laims based on violations of state law and police procedure are not actionable
under § 1983.”).
We affirm the district court’s conclusion that the doctrine of qualified
immunity bars Cappelli’s Fourth Amendment unlawful arrest claim.
C. Dismissal of Cappelli’s Due Process Claim Related to the Booking Fee
Cappelli alleged the Jefferson County Sheriff’s Office violated his Fourteenth
Amendment due process rights by imposing an unreasonable procedural requirement
to refund the $30 booking fee it collected from him at the time of his arrest. In
particular, he asserted that the Sheriff’s Office required him to submit a form
requesting a refund. The form, in turn, asked Cappelli to submit documents showing
he had been acquitted “to assist the Sheriffs Office [sic] in processing [Cappelli’s]
request.” Aplts. App., vol. 2 at 62. Cappelli alleged he did not have a document
evincing his acquittal and had to spend $439.50 in attorneys’ and other fees to get
one.
The district court evaluated the claim under Mathews v. Eldridge, 424 U.S.
319 (1976). “Under Mathews, whether due process was satisfied requires analysis of
the governmental and private interests that are affected.” United States v. Muhtorov,
20 F.4th 558, 624 (10th Cir. 2021) (internal quotation marks omitted). In Nelson v.
Colorado, 137 S. Ct. 1249, 1258 (2017), the Supreme Court applied Mathews and
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held that “a State may not impose anything more than minimal procedures on the
refund of exactions dependent upon a conviction subsequently invalidated.” The
district court found that the “mechanism for obtaining a refund is straightforward and
reasonable” and does not offend due process. Aplts. App., vol. 2 at 154.
Cappelli argues the refund procedure imposes a burden beyond what Nelson
allows. We disagree. The requirement to produce an acquittal document2 is
ministerial in nature and in most cases requires nothing more than making a
photocopy of a document the applicant already possesses. In Cappelli’s case, he
alleged his CPO did not provide any documentation evincing his acquittal, so he had
to obtain relevant documents via a request under the Colorado Criminal Justice
Records Act. And he alleged he had to pay a $5 fee to make the request. But taking
these steps did not cause Cappelli to suffer a burden beyond what Nelson allows.
Cappelli’s effort to bootstrap his due process claim by adding an allegation
that he had to engage an attorney to make the records request falls flat. Under
Colorado law, “records of official actions . . . shall be open for inspection by any
person at reasonable times.” Colo. Rev. Stat. § 24-72-303(1) (emphasis added).
2 We assume for purposes of this Order and Judgment that the Sheriff’s Office required Cappelli to produce his acquittal document to obtain a refund of the booking fee. But we note that Cappelli’s complaint only alleges that the Sheriff’s Office asked for this documentation “to assist the Sheriffs Office [sic] in processing [Cappelli’s] request.” Aplts. App., vol. 2 at 62 (emphasis added). The complaint does not allege Cappelli’s request would have been denied if he had submitted it without the document.
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Cappelli’s voluntary choice to engage an attorney to make the request on his behalf
cannot render the Sheriff’s procedures unconstitutional.
Cappelli also argues the district court erred by considering evidence outside
the complaint to support its dismissal. We need not decide this issue given our de
novo conclusion that the complaint does not allege a viable due process claim.
We affirm the district court’s dismissal of Cappelli’s due process claim.
III. Conclusion
We affirm the district court’s judgment.
Entered for the Court
Bobby R. Baldock Circuit Judge