FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 19, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court TIMOTHY JACK CRALL,
Plaintiff - Appellant,
v. No. 18-1313 (D.C. No. 1:17-CV-02317-REB-STV) GREG WILSON, Elbert County Deputy (D. Colo.) Sheriff, in his individual capacity,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, BACHARACH, and McHUGH, Circuit Judges. _________________________________
Timothy Crall appeals the district court’s dismissal of his 42 U.S.C. § 1983
claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Crall brought suit against Elbert County Deputy Sheriff Greg Wilson for Fourth
Amendment claims related to a search and seizure at Crall’s home on January 24, 2017.1
At approximately 10:00 p.m. on that date, Wilson and several other deputies arrived
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Because Crall’s claims were dismissed under Fed. R. Civ. P. 12(b)(6), all facts are taken from his amended complaint. Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011). at a property in Elbert County with the intention of arresting Kent Thompson. They
possessed a valid arrest warrant for Thompson related to a non-violent drug crime.
The property consisted of a main house, owned by Scott Guynn, and a fifth
wheel trailer in the back yard. Deputies spoke with Guynn, who told them that Crall
owned and resided in the trailer and that both Crall and Thompson were inside.
According to the amended complaint, “the deputies had information indicating
that . . . Thompson was temporarily staying at the . . . address, but had no reason to
believe he lived there.” And “[t]he deputies on scene were familiar with . . .
Thompson, from prior contacts, and knew or should have known that he did not live
in the 5th wheel trailer.”
Wilson and the other deputies decided to search Crall’s trailer in an effort to
locate Thompson and execute the arrest warrant. They found the door of the trailer
propped open, with a blanket covering the doorframe. After entering the trailer with
a police dog, they discovered two additional blankets dividing the trailer into three
areas: a kitchen/living room, a hallway, and a bedroom/television area. From the
hallway, deputies could see into the bedroom through a gap at the base of the blanket.
They observed a space heater and a pair of work boots at the foot of a bed. They
could also hear that a television was on.
Crall concedes the deputies announced their presence. However, he alleges he
did not hear their announcement due to sounds coming from the space heater and
television, as well as his level of intoxication. Wilson then “stated loudly that he
would send the dog into the bedroom to bite” the occupant if the occupant did not
2 come into the hallway. When Crall did not emerge, Wilson sent the dog into the
bedroom. It bit Crall’s knee, and Wilson yanked the dog’s leash to pull Crall out of
bed. When Crall attempted to brace himself, the dog also bit his right arm, although
there is no allegation any deputy ordered the dog to do so. Another deputy
handcuffed Crall and he was taken into custody. After Crall was removed from the
trailer, deputies located and arrested Thompson, who was also inside.
Crall filed suit against Wilson advancing Fourth Amendment unreasonable
search, unreasonable seizure, and excessive force claims under § 1983. Wilson
moved to dismiss under Fed. R. Civ. P. 12(b)(6) based on a qualified immunity
defense. A magistrate judge recommended granting Wilson’s motion. After
considering Crall’s objections, the district court adopted the magistrate judge’s
recommendation and dismissed Crall’s claims. Crall now appeals.
II
We review de novo a district court’s qualified immunity ruling. Maestas v.
Lujan, 351 F.3d 1001, 1007 (10th Cir. 2003). At the motion to dismiss stage, “all
well-pleaded factual allegations in the complaint are accepted as true and viewed in
the light most favorable to the nonmoving party.” Brown, 662 F.3d at 1162
(quotation and alteration omitted). In assessing a qualified immunity defense at this
stage, we must determine whether the plaintiff pled facts indicating: (1) the
defendant violated a statutory or constitutional right and (2) that right was “clearly
established” at the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S.
731, 735 (2011).
3 In resolving a qualified immunity dispute, courts are “permitted to exercise
their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances of the particular case
at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). We conclude it
appropriate to proceed directly to the second prong in this case.
“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Thomas v. Durastanti, 607 F.3d 655, 669
(10th Cir. 2010) (quotation omitted). “Ordinarily this standard requires either that
there is a Supreme Court or Tenth Circuit decision on point, or that the clearly
established weight of authority from other courts has found the law to be as the
plaintiff maintains.” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quotation and
alteration omitted). “In the Fourth Amendment context,” whether a right is clearly
established “depends very much on the facts of each case, and the precedents must
squarely govern the present case.” Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir.
2016) (quotations omitted). However, “in an obvious case,” more general “standards
can clearly establish the answer, even without a body of relevant case law.”
Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (quotations omitted).
A
In his first claim, Crall alleges that Wilson’s entrance into the trailer without a
search warrant, with the intent of executing an arrest warrant against Thompson, was
an unreasonable search. He argues that the law was clearly established that police
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 19, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court TIMOTHY JACK CRALL,
Plaintiff - Appellant,
v. No. 18-1313 (D.C. No. 1:17-CV-02317-REB-STV) GREG WILSON, Elbert County Deputy (D. Colo.) Sheriff, in his individual capacity,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, BACHARACH, and McHUGH, Circuit Judges. _________________________________
Timothy Crall appeals the district court’s dismissal of his 42 U.S.C. § 1983
claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Crall brought suit against Elbert County Deputy Sheriff Greg Wilson for Fourth
Amendment claims related to a search and seizure at Crall’s home on January 24, 2017.1
At approximately 10:00 p.m. on that date, Wilson and several other deputies arrived
* 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. 1 Because Crall’s claims were dismissed under Fed. R. Civ. P. 12(b)(6), all facts are taken from his amended complaint. Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011). at a property in Elbert County with the intention of arresting Kent Thompson. They
possessed a valid arrest warrant for Thompson related to a non-violent drug crime.
The property consisted of a main house, owned by Scott Guynn, and a fifth
wheel trailer in the back yard. Deputies spoke with Guynn, who told them that Crall
owned and resided in the trailer and that both Crall and Thompson were inside.
According to the amended complaint, “the deputies had information indicating
that . . . Thompson was temporarily staying at the . . . address, but had no reason to
believe he lived there.” And “[t]he deputies on scene were familiar with . . .
Thompson, from prior contacts, and knew or should have known that he did not live
in the 5th wheel trailer.”
Wilson and the other deputies decided to search Crall’s trailer in an effort to
locate Thompson and execute the arrest warrant. They found the door of the trailer
propped open, with a blanket covering the doorframe. After entering the trailer with
a police dog, they discovered two additional blankets dividing the trailer into three
areas: a kitchen/living room, a hallway, and a bedroom/television area. From the
hallway, deputies could see into the bedroom through a gap at the base of the blanket.
They observed a space heater and a pair of work boots at the foot of a bed. They
could also hear that a television was on.
Crall concedes the deputies announced their presence. However, he alleges he
did not hear their announcement due to sounds coming from the space heater and
television, as well as his level of intoxication. Wilson then “stated loudly that he
would send the dog into the bedroom to bite” the occupant if the occupant did not
2 come into the hallway. When Crall did not emerge, Wilson sent the dog into the
bedroom. It bit Crall’s knee, and Wilson yanked the dog’s leash to pull Crall out of
bed. When Crall attempted to brace himself, the dog also bit his right arm, although
there is no allegation any deputy ordered the dog to do so. Another deputy
handcuffed Crall and he was taken into custody. After Crall was removed from the
trailer, deputies located and arrested Thompson, who was also inside.
Crall filed suit against Wilson advancing Fourth Amendment unreasonable
search, unreasonable seizure, and excessive force claims under § 1983. Wilson
moved to dismiss under Fed. R. Civ. P. 12(b)(6) based on a qualified immunity
defense. A magistrate judge recommended granting Wilson’s motion. After
considering Crall’s objections, the district court adopted the magistrate judge’s
recommendation and dismissed Crall’s claims. Crall now appeals.
II
We review de novo a district court’s qualified immunity ruling. Maestas v.
Lujan, 351 F.3d 1001, 1007 (10th Cir. 2003). At the motion to dismiss stage, “all
well-pleaded factual allegations in the complaint are accepted as true and viewed in
the light most favorable to the nonmoving party.” Brown, 662 F.3d at 1162
(quotation and alteration omitted). In assessing a qualified immunity defense at this
stage, we must determine whether the plaintiff pled facts indicating: (1) the
defendant violated a statutory or constitutional right and (2) that right was “clearly
established” at the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S.
731, 735 (2011).
3 In resolving a qualified immunity dispute, courts are “permitted to exercise
their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances of the particular case
at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). We conclude it
appropriate to proceed directly to the second prong in this case.
“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Thomas v. Durastanti, 607 F.3d 655, 669
(10th Cir. 2010) (quotation omitted). “Ordinarily this standard requires either that
there is a Supreme Court or Tenth Circuit decision on point, or that the clearly
established weight of authority from other courts has found the law to be as the
plaintiff maintains.” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quotation and
alteration omitted). “In the Fourth Amendment context,” whether a right is clearly
established “depends very much on the facts of each case, and the precedents must
squarely govern the present case.” Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir.
2016) (quotations omitted). However, “in an obvious case,” more general “standards
can clearly establish the answer, even without a body of relevant case law.”
Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (quotations omitted).
A
In his first claim, Crall alleges that Wilson’s entrance into the trailer without a
search warrant, with the intent of executing an arrest warrant against Thompson, was
an unreasonable search. He argues that the law was clearly established that police
4 may not search for the subject of an arrest warrant in the home of a third party absent
a search warrant or exigent circumstances. We disagree.
It is not clearly established that entering a third party’s residence to execute a
valid arrest warrant against an individual “temporarily staying” in the residence
violates the third party’s Fourth Amendment rights. It is clear that if the subject of
an arrest warrant is merely a guest in a home, law enforcement may not enter without
a search warrant or exigent circumstances. Steagald v. United States, 451 U.S. 204,
215-216 (1981). However, if the subject of the arrest warrant lives in the residence,
law enforcement may enter to execute a valid arrest warrant without a search warrant
or exigent circumstances. Payton v. New York, 445 U.S. 573, 603 (1980) (“[F]or
Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in which the suspect lives
when there is reason to believe the suspect is within.”).
The facts alleged by Crall fall somewhere between these poles. As our court
has previously explained, “Payton and Steagald cannot be understood to divide the
world into residences belonging solely to the suspect on the one hand, and third
parties on the other.” Valdez v. McPheters, 172 F.3d 1220, 1225 (10th Cir. 1999).
“In the real world, people do not live in individual, separate, hermetically-sealed
residences,” but rather “live with other people [and] move from one residence to
another.” Id. Accordingly, the subject of an arrest warrant may be considered to
reside somewhere for Fourth Amendment purposes “so long as the suspect possesses
5 common authority over, or some other significant relationship to, the residence.” Id.
(quotation omitted).
Crall has not come forward with case law clearly establishing that Thompson
should have been treated as a guest rather than a resident. He does not provide any
Supreme Court or Tenth Circuit authority addressing entry into an individual’s
residence where the subject of a valid arrest warrant is also temporarily staying. And
his conclusory allegation that police knew or should have known Thompson did not
live in the trailer does not overcome the fact that his amended complaint alleges
Wilson knew Thompson was “temporarily staying” in the trailer. See Robertson v.
Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007) (“Conclusory
allegations are not sufficient to state a constitutional violation.”).
B
Crall’s second claim alleges an unreasonable seizure. He argues that Wilson
ordered him to exit the bedroom without probable cause or reasonable suspicion to
believe he had committed a crime. Crall further contends Wilson’s command to the
police dog was unreasonable because Crall had no obligation to exit the bedroom.
As with his first claim, Crall fails to identify any authority clearly establishing
these propositions. He correctly states that “a sufficiently coercive order requiring an
individual to leave his own house counts as a seizure subject to the protections of the
Fourth Amendment.” Storey v. Taylor, 696 F.3d 987, 993 (10th Cir. 2012). But
even assuming Wilson’s order for Crall to exit his bedroom constituted a seizure,
6 Crall cites no Supreme Court or Tenth Circuit case establishing that such a seizure
violates the Fourth Amendment.
As explained supra, Wilson entered Crall’s home to execute a valid arrest
warrant, and that entry was not a clearly established Fourth Amendment violation.
Law enforcement may temporarily detain individuals, including third parties, in the
course of executing a valid arrest warrant in certain circumstances. See Maryland v.
Buie, 494 U.S. 325, 336-37 (1990) (law enforcement may conduct a “protective
sweep” of a residence without a separate search warrant and without probable cause
or reasonable suspicion if officers have a reasonable belief the protective sweep is
necessary for safety). We have interpreted Buie’s authorization of “protective
sweeps” to permit “protective detentions.” United States v. Maddox, 388 F.3d 1356,
1362 (10th Cir. 2004). Based on the facts alleged, it would not have been clear to a
reasonable officer that a protective detention of Crall was unlawful.
C
Lastly, Crall advances an excessive force claim based on Wilson’s use of his
police dog. “[C]laims that law enforcement officers have used excessive force . . .
should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”
Graham v. Connor, 490 U.S. 386, 395 (1989). Courts should consider “the severity
of the crime at issue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Id. at 396.
7 Crall fails to identify any precedent considering a similar fact pattern. Instead,
he relies exclusively on the Graham factors, arguing this is such an “obvious case”
that the general standard clearly establishes that Wilson’s conduct was unlawful.
Brosseau, 543 U.S. at 199 (quotation omitted). We disagree. “[A]n officer’s
violation of the Graham reasonableness test is a violation of clearly established law if
there are no substantial grounds for a reasonable officer to conclude that there was a
legitimate justification for acting as she did.” Casey v. City of Federal Heights, 509
F.3d 1278, 1286 (10th Cir. 2007) (quotation omitted).
Wilson could have reasonably believed that use of a police dog was
permissible. Our court has held in other circumstances that the use of police dogs
does not constitute excessive force. See, e.g., Marquez v. City of Albuquerque, 399
F.3d 1216, 1221 (10th Cir. 2005) (jury “could rationally reach the conclusion that
[law enforcement] . . . acted reasonably when, after warning [plaintiff] to halt, he
ordered his police service dog to apprehend [plaintiff]”). And in this case, officers
announced their presence in the home and Wilson loudly announced that he would
deploy the dog if the occupant of the bedroom did not emerge. Officers could not see
what the individual in the bedroom was doing, but had reason to think a person was
in the room refusing to exit. We therefore reject Crall’s argument that this presents
an obvious case of excessive force.
8 III
AFFIRMED.
Entered for the Court
Carlos F. Lucero Circuit Judge