Tubbs v. Harrison , 383 F. App'x 804 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 23, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JAMES KELLY TUBBS; TAMMY
LYNN TUBBS,
Plaintiffs-Appellees,
v.
JEREMY HARRISON; TIMOTHY
MUZNY, No. 09-6152
(D.C. No. 5:07-CV-01286-M)
Defendants-Appellants, (W.D. Okla.)
and
THE CITY OF OKLAHOMA CITY, a
political subdivision of the State of
Oklahoma,
Defendant.
ORDER AND JUDGMENT *
Before TYMKOVICH, SEYMOUR, and BALDOCK, Circuit Judges.
Jeremy Harrison and Timothy Muzny appeal the district court’s denial of
*
This order and judgment is not binding precedent, except under the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 the terms and conditions of Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
their motion for summary judgment. We dismiss for lack of jurisdiction.
Defendants are police officers with the Oklahoma City Police Department. 1
They went to the home of James Kelly Tubbs and Tammy Lynn Tubbs to conduct
a “knock and talk” 2 based on two anonymous tips, received seven months
previously, of drug related activities at Mr. Tubbs’ residence. Defendants were
accompanied by two other officers who waited to the side of the house. When
Officer Harrison identified himself and asked to come inside to talk, Mr. Tubbs
responded, “If we’re gong to do this, we’re going to do it outside.” Aplt. App. at
158. Mr. Tubbs opened the door partially and told Officer Harrison to “[h]old on.
Let me get my wife.” Id. at 144. But defendants did not comply with this
instruction. Instead, they forcibly entered the residence upon what they claim
was probable cause and exigent circumstances based on the smell of marijuana
coming from the home. Id. at 157. Plaintiffs dispute that there was any smell of
marijuana present. Id. at 144-45, 157.
Upon entering the house, defendants handcuffed Mr. Tubbs and, according
to plaintiffs, violently forced him to the ground. Id. at 145, 172. When Mrs.
Tubbs entered the living room, she was told to shut up and sit down. Id. at 146.
1
We set out the facts in the light most favorable to plaintiffs, the non-
moving party. See Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007).
2
A “knock and talk” is a consensual encounter between police officers and
citizens. United States v. Reeves, 524 F.3d 1161, 1166, n.3 (10th Cir. 2008).
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The two non-party officers then entered the house and performed a protective
sweep, during which they claim they found some marijuana in plain view. To the
contrary, Mr. Tubbs testified that there was no marijuana in plain view. Id. at
228-29. At some point, Officer Harrison asked for Mr. Tubbs’ consent to search
the residence. Mr. Tubbs initially refused, but consented to the search after
Officer Harrison agreed not to charge Mrs. Tubbs. Id. at 141, 173. During the
search, defendants discovered a duffel bag containing marijuana, which Mr.
Tubbs says was locked in his closet, id. at 229, and arrested both plaintiffs, id. at
405.
The criminal charges against plaintiffs were dismissed when the state court
granted their motion to suppress the evidence after concluding that defendants’
entry into plaintiffs’ home was not justified by any recognized exception to the
warrant requirement. Plaintiffs filed this 42 U.S.C. § 1983 action against
defendants, asserting that they violated plaintiffs’ constitutional rights when they
entered and searched plaintiffs’ residence, used excessive force against Mr.
Tubbs, and arrested plaintiffs. Defendants moved for summary judgment,
contending the qualified immunity doctrine bars plaintiffs’ § 1983 action. The
district court denied the motion. Aplt. App. at 404, District Court Order, July 23,
2009 (hereinafter “Order”).
Generally,
a district court’s order denying a defendant’s motion for summary
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judgment [is] an immediately appealable “collateral order” (i.e., a
“final decision”) . . . where (1) the defendant [is] a public official
asserting a defense of “qualified immunity” and (2) the issue
appealed concern[s] not which facts the parties might be able to
prove, but, rather, whether or not certain given facts show[] a
violation of “clearly established” law.
Armijo v. Wagon Mound Pub. Schs., 159 F.3d 1253, 1258 (10th Cir. 1998)
(quoting Johnson v. Jones, 515 U.S. 304, 311 (1995)). But such “immunity
appeals are limited to cases presenting neat abstract issues of law.” Armijo, 159
F.3d at 1258 (quotation marks and internal alterations omitted). In considering
abstract legal issues on collateral appeal from the denial of qualified immunity,
we have recognized that we must consider
whether, under plaintiff’s version of the facts, defendant violated
clearly established law. In making this determination, we must
scrupulously avoid second-guessing the district court’s
determinations regarding whether plaintiff has presented evidence
sufficient to survive summary judgment. Rather, we review only
whether defendant’s conduct, as alleged by plaintiff, violated clearly
established law.
Id. at 1259 (original citation and internal alterations omitted). Accordingly,
where the district court has concluded that a plaintiff presented sufficient
evidence to survive summary judgment on a defendant’s claim of qualified
immunity, we do not “have jurisdiction to review the district court’s . . . finding
that a genuine dispute of fact existed . . . .” Id. Nor do we have jurisdiction to
review a “district court’s denial of the defendant’s motion for summary judgment
[when it] is predicated on ‘evidence sufficiency,’ i.e. which facts a party may, or
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may not, be able to prove at trial.” Id. at 1258 (citation omitted). Accord
Fletcher v. Burkhalter, ___ F.3d ___, 2010 WL 2026621 at *4 (10th Cir. May 24,
2010).
Turning to the legal questions in this case, the law is clearly established
that a warrantless home entry “must be ‘(1) pursuant to clear evidence of probable
cause, (2) available only for serious crimes and in circumstances where the
destruction of evidence is likely, (3) limited in scope to the minimum intrusion
necessary, and (4) supported by clearly defined indicators of exigency that are not
subject to police manipulation or abuse.’” United States v. Carter, 360 F.3d
1235, 1241 (10th Cir. 2004) (quoting United States v. Aquino, 836 F.2d 1268,
1272 (10th Cir. 1988)). Defendants concede that the anonymous tips they
received were not sufficient to establish probable cause. Applying Carter, and
viewing the evidence in the light most favorable to plaintiffs, the district court
concluded the record contains material issues of fact as to whether defendants
gained probable cause to enter plaintiffs’ residence and whether exigent
circumstances justified their warrantless entry. 3 Specifically, the court identified
a significant disputed issue of fact as whether defendants could actually smell
3
The court also concluded plaintiffs presented sufficient evidence that
they did not voluntarily consent to the search, Order at 5 (citing United States v.
Pena-Sarabia, 297 F.3d 983, 987 (10th Cir. 2002)), and that in light of the highly
disputed circumstances surrounding the lawfulness of defendants’ entry into
plaintiffs’ residence, defendants used excessive force against Mr. Tubbs, Order at
4.
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marijuana while they spoke with Mr. Tubbs. Order at 4. 4 Notably, if there was
no smell of marijuana, there were no exigent circumstances warranting the
intrusion into plaintiffs’ house, the subsequent handcuffing of Mr. Tubbs, the
search of the house, or the arrest of plaintiffs.
Defendants urge us to disregard the district court’s determinations
regarding material factual disputes, contending, inter alia, that “there is no
genuine material issue of fact as to whether Officer Harrison and Lt. Muzny had
probable cause to believe a crime was being committed based on the smell of
marijuana[,]” Aplt. Br. at 20, and that “[i]n the instant case, absent a plausible
dispute regarding whether Lt. Muzny and Officer Harrison could smell marijuana,
there is no jury question regarding the existence of probable cause. Therefore,
the district court erred in denying the Appellant Officers’ motion for qualified
immunity.” Id. at 31. But defendants cannot so easily ignore the evidence
presented by plaintiffs. Where, as here, the district court determined that
plaintiffs’ evidence presented material issues of fact regarding whether
defendants violated their clearly-established constitutional rights, we easily
conclude that we do not have jurisdiction to review the court’s denial of
defendants’ motion for summary judgment. See Armijo, 159 F.3d at 1259. “Even
4
Alternatively, the court concluded that even if defendants did smell
marijuana, this alone did not constitute a “serious crime” for the purpose of
determining whether exigent circumstances were present in this case. See Order
at 4 (citing Carter, 360 F.3d at 1242).
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if the district court erred in reaching that finding, we would not have jurisdiction
to review that fact-based determination on an interlocutory appeal.” Id.We therefore DISMISS this appeal for lack of jurisdiction.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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