Harris v. Ford , 369 F. App'x 881 ( 2010 )


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  •                                                                          FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS                  March 10, 2010
    Elisabeth A. Shumaker
    TENTH CIRCUIT                        Clerk of Court
    ROBERT GERALD HARRIS,
    Plaintiff - Appellant,                    No. 09-3272
    v.                                              (D. Kansas)
    REGGIE FORD; RON HARRIS;                      (D.C. No. 5:07-CV-03079-MLB)
    NEAL TIERNEY; and MELVIN
    DALE,
    Defendants - Appellees.
    ORDER AND JUDGMENT *
    Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
    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    This order and judgment is not binding precedent except under the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.
    Plaintiff and appellant Robert Gerald Harris appeals the grant of summary
    judgment to defendants in this 
    42 U.S.C. § 1983
     action 1 arising out of two
    searches of Mr. Harris’s home. For the following reasons, we affirm.
    BACKGROUND
    Mr. Harris resided at 203 Russell Street in Scott City, Kansas, at the time
    of the events relevant to this case. On October 5, 2005, Scott City emergency
    dispatch was told that Mr. Harris was at 801 West 4 th Street, with an apparently
    self-inflicted gunshot wound in his hand. Scott City police officer Reggie Ford
    went to the 4 th Street location, and was immediately told by Deputy Milton
    Masters, who was already at the scene and who was with Mr. Harris, to go to
    Mr. Harris’s residence on Russell Street and look for a spent shotgun shell “in
    two old cars.” Ford Dep. at 32, 87; R. Vol. 3 at 135, 141. Officer Ford arrived at
    Mr. Harris’s residence and searched the vehicles but did not find a shotgun shell.
    Officer Ford observed blood on a lawn chair near the front porch, as well as on
    the porch itself and on the front door. The officer entered the residence to look
    for injured persons.
    While looking for anyone injured, Officer Ford saw the following items:
    .22 caliber shells, ladyfinger firecrackers with no fuses, some pipe, some pieces
    1
    As explained more fully, infra, Mr. Harris’s action against one of the
    defendants is a Bivens action. See Bivens v. Six Unknown Agents of Federal
    Bureau of Narcotics, 
    403 U.S. 388
     (1971).
    -2-
    of guns, a pair of hemostats, a clock, some wristwatches, and some small hand
    tools. Believing that these items were being used to construct a bomb, the officer
    returned to his vehicle and retrieved his camera. Officer Ford reentered
    Mr. Harris’s residence and stayed there for approximately an hour. The officer
    seized items and took photographs. Throughout this time period, Officer Ford did
    not have a search warrant or consent to search from Mr. Harris. Additional
    officers arrived at the scene to assist Officer Ford.
    In the evening of October 5, the officers contacted defendant Neal Tierney,
    a Special Agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives,
    because of the officers’ concern that Mr. Harris might actually have been injured
    by a pipe bomb explosion. Agent Tierney ordered a criminal background check
    on Mr. Harris, which revealed his status as a felon. Ronald Harris 2 and Melvin
    Dale, investigators for the Kansas State Fire Marshal, were also contacted.
    On October 6, Agent Tierney and Investigator Harris interviewed
    Mr. Harris at the hospital where he awaited surgery. During this interview, Agent
    Tierney asked Mr. Harris what had happened, and Mr. Harris described how a
    device inside a box “went off,” resulting in the injury to his hand. Mr. Harris
    further stated that someone had planted the device in the box and that this person
    was out to “get” him. Mr. Harris admitted to having ammunition in his home and
    2
    Because the plaintiff, Mr. Harris, and investigator Ronald Harris share the
    same last name, we continue to refer to the plaintiff as Mr. Harris, and the
    investigator as Harris or Investigator Harris.
    -3-
    he further admitted that he had set up several booby-traps for unwelcome visitors.
    Mr. Harris indicated that he was concerned about items that were removed from
    his residence on October 5, because he had been informed that Officer Ford had
    removed five bags from his residence, and Mr. Harris wanted Agent Tierney to
    determine what had been removed. Agent Tierney then asked Mr. Harris for
    consent to search his residence, and Mr. Harris signed a written consent to search
    his residence, the vehicles on site, and the out buildings. When Investigator
    Harris asked Mr. Harris if his injury was painful, Mr. Harris responded that “it
    wasn’t all that painful.” The investigator also indicated in his report that Mr.
    Harris was attached to an IV machine to administer pain medication.
    Later that day (October 6), Agent Tierney, Harris, Dale and others entered
    Mr. Harris’s residence to conduct a second search. Inside Mr. Harris’s home,
    they noted on the coffee table “a mix of items including 22 cal ammunition and
    12 gauge shotgun shells.” Report at 2; R. Vol. 1 at 136. The following items
    were listed on the “receipt for property” seized on October 6: eighteen .22 live
    federal ammunition, three 12-gauge ammunition, a rifle, pieces of pipe and nails,
    and drug paraphernalia.
    Mr. Harris was subsequently charged with one count of being a felon in
    possession of ammunition. The government then filed a superseding indictment,
    charging Mr. Harris with being a felon in possession of ammunition, a gun and
    methamphetamine. Mr. Harris filed a motion to suppress the evidence seized
    -4-
    from his residence. Ultimately, the government moved to dismiss the counts, and
    the court granted the government’s motion without prejudice. The government
    has not re-filed charges against Mr. Harris, and the record is silent as to the
    reasons for the dismissal and failure to re-file.
    On December 9, 2005, Mr. Harris filed a pro se civil action against the
    Scott County Sheriff’s Office, alleging that his constitutional rights were violated
    by the seizure of “personal valuable possessions that have absolutely no bearing
    on the case brought against the plaintiff by the government.” Civil Action at 1;
    R. Vol. 2 at 148. Mr. Harris further asserted that certain personal items were
    taken and he sought the return of those items (three watches, an address book and
    wedding rings). On May 15, 2006, Mr. Harris executed a release of all claims.
    He was given $3,000 in exchange for releasing “Scott County, Scott City, their
    agents . . . and all other persons . . . from any and all claims . . . from an incident
    which occurred on or about the 9 th day of December, 2005, in Scott County,
    Kansas.” Release at 1; R. Vol. 2 at 152. 3 On that same date, a magistrate judge
    dismissed the case with prejudice.
    3
    The parties agree that the date stated in the document, December 9, 2005,
    is erroneous and should be October 5 and 6, 2005. Additionally, no party argues
    that that civil action should have any res judicata or other preclusive effect on
    this case. We decline to consider an issue not raised by the parties.
    -5-
    On March 28, 2007, Mr. Harris, proceeding again pro se, filed this § 1983
    action 4 against defendants Officer Ford, Special Agent Tierney and Investigators
    Dale and Harris, asserting that his constitutional rights were violated by the
    defendants’ actions in searching his home on October 5 and 6, 2005. Mr. Harris
    further alleged that Officer Ford conspired with Agent Tierney and Investigators
    Harris and Dale to violate his rights by placing evidence seized on October 5 back
    in his home so that it could be seized the next day after he had given his consent.
    The district court appointed counsel after the defendants moved for summary
    judgment on various grounds, including qualified immunity and consent.
    The district court granted summary judgment to the defendants, finding
    they were entitled to qualified immunity for their actions in the searches on both
    October 5 and 6, 2005, and that Mr. Harris had consented to the October 6 search.
    With respect to the October 5 search, the court held:
    Since there is no Tenth Circuit or Supreme Court decision on point or
    a clearly established weight of authority from other courts, the court
    finds that the right to be free from a seizure of property after an
    officer has lawfully observed an item in plain view but left the
    location for a short period before the seizure has not been clearly
    established.
    4
    Because Agent Tierney is a federal officer, Mr. Harris’s action against him
    is brought pursuant to Bivens v. Six Unknown Agents of Federal Bureau of
    Narcotics, 
    403 U.S. 388
     (1971), while his action against the other defendants is
    under 
    42 U.S.C. § 1983
    . The qualified immunity and consent analysis is the same
    for both actions. See DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 
    844 F.2d 714
    , 720 n.6 (1988).
    -6-
    Memorandum & Order at 16; R. Vol. 3 at 251. The district court held that the
    October 6 search was consensual. This appeal followed.
    On appeal, Mr. Harris argues the district court erred because it (1) failed to
    find that the defendants were not protected by qualified immunity; (2) applied the
    plain view doctrine; (3) failed to find that Officer Ford violated the Fourth
    Amendment by entering Mr. Harris’s home without justification and then re-
    entering the home for the sole purpose of gathering evidence; and (4) failed to
    find that the defendants’ October 6 search violated the Fourth Amendment
    because it was tainted by evidence acquired in the illegal search the day before
    and because Mr. Harris’s consent was not voluntarily given.
    DISCUSSION
    “We review the district court’s grant of summary judgment de novo,
    applying the same legal standard used by the district court.” Martinez v. Beggs,
    
    563 F.3d 1082
    , 1088 (10th Cir.), cert. denied, 
    130 S. Ct. 259
     (2009). Summary
    judgment should be granted “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 that the movant is entitled to judgment as a matter of law.” Fed.
    R. Civ. P. 56(c).
    -7-
    I. October 5 Search and Qualified Immunity
    Officer Ford contends that he is shielded by qualified immunity for the
    warrantless search conducted on October 5, 2005. “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.” Herrera v. City of
    Albuquerque, 
    589 F.3d 1064
    , 1070 (10th Cir. 2009) (quoting Pearson v. Callahan,
    
    129 S. Ct. 808
    , 815 (2009) (further quotation omitted)). As we explained further:
    Qualified immunity balances two important interests—the need to
    hold public officials accountable when they exercise power
    irresponsibly and the need to shield officials from harassment,
    distraction, and liability when they perform their duties reasonably.
    The protection of qualified immunity applies regardless of whether
    the government official’s error is a mistake of law, a mistake of fact,
    or a mistake based on mixed questions of law and fact.
    
    Id.
     (internal quotations omitted).
    We employ a two-pronged analysis to resolve a dispositive motion based on
    qualified immunity. “First, a court must decide whether the facts that a plaintiff
    has alleged or shown make out a violation of a constitutional right.” Pearson, 
    129 S. Ct. at 815-16
     (internal citations omitted). “Second, . . . the court must decide
    whether the right at issue was ‘clearly established’ at the time of the defendant’s
    alleged misconduct.” 
    Id. at 816
    . “With regard to this second [question], 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
    -8-
    under the circumstances presented.” Fogarty v. Gallegos, 
    523 F.3d 1147
    , 1155
    (10th Cir. 2008) (internal quotations and brackets omitted). We may resolve a
    question of qualified immunity on either ground “in light of the circumstances in
    the particular case at hand.” Pearson, 
    129 S. Ct. at 818
    . We review de novo the
    district court’s qualified immunity decision. Weigel v. Broad, 
    544 F.3d 1143
    ,
    1150 (10th Cir. 2008); see also Herrera, 
    589 F.3d at 1070
    . Accordingly, we begin
    our qualified immunity analysis by determining whether there was any clearly
    established constitutional right that was violated by Officer Ford’s entry into
    Mr. Harris’s home on October 5, 2005, during which he seized certain items.
    It is undisputed that Officer Ford did not have a warrant when he searched
    Mr. Harris’s home and seized items on October 5. “It is a basic principle of
    Fourth Amendment law that searches and seizures inside a home without a
    warrant are presumptively unreasonable.” United States v. Porter, No. 07-4158,
    
    2010 WL 437337
    , at *2 (10th Cir. Feb. 9, 2010) (quoting Brigham City v. Stuart,
    
    547 U.S. 398
     (2006)). There are a few exceptions to the warrant requirement,
    however, one of which is “when the exigencies [in a situation] . . . make the needs
    of law enforcement so compelling that the warrantless search is objectively
    reasonable under the Fourth Amendment.” 
    Id.
     (internal quotation omitted). “This
    exception must be strictly circumscribed by the exigencies.” Porter, 
    2010 WL 437337
    , at *2 (internal quotation omitted). Further, the “government bears the
    burden of proving the exigency exception to the warrant requirement applies,”
    -9-
    United States v. Najar, 
    451 F.3d 710
    , 717 (10th Cir. 2006), which burden “is
    especially heavy when the exception must justify the warrantless entry of a
    home.” 
    Id.
    After the Supreme Court’s decision in Brigham City, we apply a two-fold
    test to determine whether the government has proven that exigent circumstances
    justify the warrantless entry of a home. We inquire “whether (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 scope of the
    search is reasonable.” 
    Id. at 718
    . “We evaluate whether the officers were
    confronted with reasonable grounds to believe there was an immediate need
    ‘guided by the realities of the situation presented by the record’ from the
    viewpoint of ‘prudent, cautious, and trained officers.’” 
    Id. at 718-19
     (quoting
    United States v. Anderson, 
    154 F.3d 1225
    , 1233 (10th Cir. 1998)). “The
    existence of exigent circumstances is a mixed question of law and fact.” Najar,
    
    451 F.3d at 717
     (internal quotation omitted).
    Here, the district court found that exigent circumstances existed: “the court
    finds that the facts demonstrate that Ford reasonably believed that an individual
    may have been injured inside of the home. Ford’s initial brief entry and search of
    the residence was reasonable and did not itself violate the Constitution.”
    Memorandum & Order at 12; R. Vol. 3 at 247. We agree with the district court.
    -10-
    Given the situation, it is clear that Officer Ford’s initial entry into Mr.
    Harris’s house was justified by the circumstances facing him—the report that the
    resident had sustained a serious injury, blood on the front porch and door, along
    with the information that a spent shell casing was involved. Mr. Harris does not
    seriously argue that the officer’s initial entry was unlawful. 5 We accordingly
    agree with the district court’s conclusion that Mr. Harris’s rights were not
    violated by that conduct.
    The next inquiry is whether it was unconstitutional for Officer Ford to
    briefly exit Mr. Harris’s home to retrieve his camera and then re-enter it to take
    photographs and seize items rather than, at that point, seeking a warrant or
    seeking consent from Mr. Harris. The defendants argue that the “plain view”
    exception to the warrant requirement makes Officer Ford’s seizure of items on
    October 5 lawful. “The plain view doctrine authorizes seizure of illegal or
    evidentiary items visible to a police officer whose access to the object has some
    prior Fourth Amendment justification and who has probable cause to suspect that
    the item is connected with criminal activity.” Harman v. Pollock, 
    586 F.3d 1254
    ,
    1264 (10th Cir. 2009) (further quotation omitted). We apply a three-part test
    which the government must satisfy to justify application of the plain view
    5
    In his prior civil action Mr. Harris brought against the Scott County
    Sheriff’s office, Mr. Harris “concede[d] that the Sheriff’s Office had a moral
    obligation to see if anyone else was in danger within the home.” Petition at 1; R.
    Vol. 1 at 70.
    -11-
    exception: “(1) the officer [must be] lawfully in a position from which to view
    the object seized in plain view; (2) the object’s incriminating character [must be]
    immediately apparent— i.e.[,] the officer ha[s] probable cause to believe the
    object was contraband or evidence of a crime; and (3) the officer [must have] a
    lawful right of access to the object itself.” 
    Id.
     (further quotation omitted).
    Mr. Harris argues that Officer Ford’s conduct violated the first and second
    elements of the plain view test, since he argues (1) the officer was not lawfully in
    the home or, if he was lawfully in the home to briefly check for other injured
    people, Officer Ford went far beyond the scope of what was permissible; and (2)
    Officer Ford did not know that the items observed were contraband because he
    had not yet learned that Mr. Harris was a felon. We reject these arguments. We
    have already held that Officer Ford was lawfully in Mr. Harris’s home, on the
    legitimate quest to see if any other persons were injured and needed assistance.
    And his observation of the items seized in plain view near more blood stains was
    clearly within the scope of his search. As to whether the officer knew that the
    items observed were contraband, we remind Mr. Harris that this rule does not
    require an officer to “know or have an unduly high degree of certainty as to the
    incriminatory character of the evidence under the plain view doctrine. All that is
    required is a practical, nontechnical probability that incriminating evidence is
    involved.” United States v. Castorena-Jaime, 
    285 F.3d 916
    , 924 (10th Cir. 2002)
    (further quotations omitted). In this case, when Officer Ford entered Mr. Harris’s
    -12-
    home and saw the items ultimately seized, he knew that there had been an
    explosion that had seriously injured a person and left pools of blood both inside
    and outside Mr. Harris’s home. In plain view near the blood were shotgun shells,
    .22 caliber shells, ladyfinger firecrackers with no fuses, pipes, a homemade gun, a
    clock, wristwatches and small hand tools. Collectively these items could very well
    have appeared to a reasonable and well-trained officer like Officer Ford to be the
    makings of a bomb or some other explosive device. Thus, he could reasonably
    have deduced that the items were involved in the criminal activity leading to
    Mr. Harris’s injury. Since there is no dispute as to the third part of the plain view
    test, we conclude that Officer Ford lawfully seized the items found in Mr.
    Harris’s home in plain view.
    Mr. Harris next argues that the district court “erred in failing to find that
    Ford violated the Fourth Amendment by entering Harris’s home without
    justification and also by re-entering the home for the sole purpose of gathering
    evidence.” Appellant’s Op. Br. at 18. The district court characterized this issue
    as “whether Ford’s re-entry negated his ability to seize the items under the plain
    view doctrine. . . . [i]t appears that this discrete factual scenario has not been
    addressed by the Tenth Circuit, or the Supreme Court.” Memorandum & Order at
    14; R. Vol. 3 at 249. The court then went on to apply the second part of the
    qualified immunity analysis—whether Officer Ford violated any right that was
    clearly established at the time of the incidents in question. “For a right to be
    -13-
    clearly established, there must be a Supreme Court or Tenth Circuit decision on
    point, or the clearly established weight of authority from other courts must have
    found the law to be as the plaintiff maintains.” Weise v. Casper, 
    593 F.3d 1163
    ,
    1167 (10th Cir. 2010) (internal alterations and quotations omitted). “The
    qualified immunity doctrine does not require a case exactly on point. Clearly
    established does not mean that an official action is protected by qualified
    immunity unless the very action in question has previously been held unlawful,
    but it is to say that in the light of pre-existing law the unlawfulness must be
    apparent.” 
    Id.
     (internal quotations omitted).
    It is telling that Mr. Harris cites no case in support of his claim that Officer
    Ford violated a clearly established right when he exited and re-entered Mr.
    Harris’s home to photograph items and seize them. 6 No other party cites a case
    on point. We can find no such case either. Accordingly, we hold that there was
    no clearly established right which Officer Ford violated in the conduct of the
    search of Mr. Harris’s home on October 5. We turn now to the search on
    October 6.
    6
    Indeed, Mr. Harris devotes only a page to this argument, and he simply
    argues that the right to be free from warrantless searches is clearly established.
    That does not satisfy the particularity requirement inherent in the qualified
    immunity inquiry.
    -14-
    II. October 6 Search and Consent
    “Whether a defendant’s consent to search . . . was voluntary is a question
    of fact, and the court considers the totality of the circumstances in making this
    determination.” United States v. Carbajal-Iriarte, 
    586 F.3d 795
    , 799 (10th Cir.
    2009). Furthermore, “[t]he government bears the burden of proof on this issue,
    and ‘must show that there was no duress or coercion, express or implied, that the
    consent was unequivocal and specific, and that it was freely and intelligently
    given.’” 
    Id.
     (quoting United States v. Soto, 
    988 F.2d 1548
    , 1557 (10th Cir.
    1993)).
    Mr. Harris argues that the district court “erred in failing to find that the
    defendants’ October 6 search violated the Fourth Amendment because it was
    tainted by evidence acquired in the illegal search and because consent was not
    voluntarily given.” Appellant’s Op. Br. at 19. Mr. Harris argues he was “not in a
    mental state in which he was able to voluntarily give his consent.” 
    Id.
     He
    presents no support for this conclusory allegation, other than to assert that he
    must have been on powerful pain medication because of his injured hand, and he
    asks us to infer that he therefore lacked the ability to make a conscious and
    voluntary decision. There is no objective evidence to support this claim, other
    than conjecture. We therefore affirm the district court’s determination that
    Mr. Harris gave a valid consent to the October 6 search of his residence.
    -15-
    Mr. Harris also argues “[t]here is a genuine issue of material fact about
    whether the evidence that served as the basis for Plaintiff’s federal prosecution
    was seized on the 5th or the 6th, which precludes summary judgment and defeats
    the purported consent exception to the warrant requirement.” Id. at 20. In
    particular, Mr. Harris argues there is inconsistency between the reports of Officer
    Ford and Agent Tierney as to whether all of the relevant ammunition (.22 caliber
    ammunition and shotgun shells) was seized on October 5 or October 6 or some
    was seized on each day. 7 Because we have found nothing unlawful in the
    warrantless search and seizure on the 5th or in the consensual search on the 6th,
    this alleged inconsistency is irrelevant.
    In sum, we perceive no violation of Mr. Harris’s constitutional rights as a
    result of the search and seizure of items from his house on October 5 and 6, 2005.
    We accordingly affirm the district court’s grant of summary judgment to the
    defendants.
    7
    Officer Ford’s report recorded no .22 caliber shells seized on the 5 th. He
    testified that he must have “overlooked them,” and they were seized the next day.
    Ford Dep. at p. 107; R. Vol. 3 at 144. Similarly, shotgun shells were reported to
    have been seized on both days.
    -16-
    CONCLUSION
    For the foregoing reasons, we AFFIRM the decision of the district court.
    ENTERED FOR THE COURT
    Stephen H. Anderson
    Circuit Judge
    -17-