Alex Lege v. City of Ketchikan ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEX J. LEGE, No. 22-35029
Plaintiff-Appellant, D.C. No. 5:20-cv-00006-HRH
v.
MEMORANDUM*
CITY OF KETCHIKAN, a municipal
corporation; ROBERT CHEATAM, in his
individual capacity; JUSTIN OSTLER, in his
individual capacity; LOUIS J. BOENTA, Jr.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, District Judge, Presiding
Argued and Submitted August 8, 2022
Anchorage, Alaska
Before: S.R. THOMAS, McKEOWN, and CLIFTON, Circuit Judges.
Plaintiff-Appellant Alex Lege appeals the district court’s grant of summary
judgment in favor of Defendants-Appellees Robert Cheatam, Justin Oster, and the
City of Ketchikan. We have jurisdiction under 28 U.S.C. § 1291, and we review
the grant of summary judgment de novo, Fin. Mgmt. Advisors, LLC v. Am. Int’l
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Specialty Lines Ins. Co., 506 F.3d 922, 925 (9th Cir. 2007). We affirm.
Given Lege’s affirmative consent and the fact that he stepped back and
appeared to welcome Oster into his apartment, a reasonable officer would have
concluded that he had consent to enter the apartment, cf. United States v. Garcia,
997 F.2d 1273, 1281 (9th Cir. 1993), and the district court properly concluded that
no reasonable juror would find to the contrary. Thus, Oster’s initial entry did not
violate the Fourth Amendment. See, e.g., United States v. Crapser, 472 F.3d 1141,
1146–47 (9th Cir. 2007).
We are not persuaded by Lege’s remaining arguments as to Oster’s initial
entry. Lege has waived any argument that his consent was not voluntary under the
five-part test in United States v. Russell, 664 F.3d 1279 (9th Cir. 2012), a test that
analyzes the voluntariness of a search of the person. With respect to Lege’s final
argument, although Oster physically occupied the curtilage of Lege’s home when
he stood outside his apartment and knocked on his door, he was permitted to do so
under the “knock and talk” exception to the warrant requirement, which enables
police officers to “encroach upon the curtilage of a home for the purpose of asking
questions of the occupants.” United States v. Lundin, 817 F.3d 1151, 1158 (9th
Cir. 2016) (citation and internal quotation marks omitted).
The district court correctly concluded that the scope of Lege’s consent
allowed Oster to re-enter the apartment after he had left to consult with Cheatam.
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Before leaving the apartment, Oster said to Lege, “I don’t know what’s going on
yet, but just hang out, okay?” Lege responded, “by all means,” and then told Oster
that he could “even keep [the door] open”—to which Oster replied, “I’ll just leave
it cracked.” It is clear from this exchange that Lege understood Oster would be
returning to the apartment and consented to his re-entry.
The district court also correctly concluded that Cheatam was allowed to
enter the apartment pursuant to United States v. Rubio, 727 F.2d 786 (9th Cir.
1983), where we held that a consensual search may not be “validly qualified by the
number of officers allowed to search,” and explained that, “[o]nce consent has
been obtained from one with authority to give it, any expectation of privacy has
been lost[,]” and “the entry of additional officers would [not] further diminish the
consenter’s expectation of privacy,” id. at 797. Contrary to Lege’s assertion,
Rubio was not overruled by Florida v. Jimeno, 500 U.S. 248 (1991), which recited
the well-established proposition that a suspect may “delimit as he chooses the
scope of the search to which he consents.” Id. at 252. We acknowledged the same
principle in Rubio but clarified that the “limitations” a suspect may validly impose
on a search pertain to the physical area to be inspected, not the number of officers
involved. 727 F.2d at 796. Neither Jimeno, nor the other cases cited by Lege, did
anything to disrupt this understanding. Indeed, we relied explicitly on Rubio’s
holding and rationale in deciding United States v. Bramble, 103 F.3d 1475 (9th Cir.
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1996), a case that came five years after Jimeno.
Finally, Lege’s warrantless arrest inside his home did not violate the Fourth
Amendment. In Payton v. New York, 445 U.S. 573 (1980), the Supreme Court
held that “the Fourth Amendment . . . prohibits the police from making a
warrantless and nonconsensual entry into a suspect’s home in order to make a
routine felony arrest.” 445 U.S. at 576 (emphasis added). And in United States v.
Gray, 626 F.2d 102 (9th Cir. 1980), we observed that “[t]he existence of probable
cause to arrest . . . does not justify entering a suspect’s home without either consent
or a warrant.” Id. at 105 (emphasis added). Both cases imply that a warrantless
arrest inside the home upon probable cause is valid if police have entered pursuant
to a valid search warrant or consent—an understanding that our subsequent cases
have reinforced. See, e.g., United States v. Struckman, 603 F.3d 731, 747 (9th Cir.
2010).
Because Lege consented to the officers’ entry into his home, the
constitutionality of his warrantless arrest turns on whether there was probable
cause. Although the district court determined that the officers had probable cause
to arrest Lege for felony third-degree assault under Alaska Statute
§ 11.41.220(a)(1)(A), Lege made no attempt to challenge this determination in his
Opening Brief, thereby waiving any challenge in this regard. See United States ex
rel. Kelly v. Serco, Inc., 846 F.3d 325, 335 (9th Cir. 2017). Lege further waived
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any challenge to this determination by failing to address it in his Reply Brief even
after Defendants raised it in their Answering Brief. See Maciel v. Cate, 731 F.3d
928, 932 n.4 (9th Cir. 2013). In light of the district court’s unchallenged probable
cause determination and the fact that Oster and Cheatam entered the apartment
with Lege’s consent, there is no basis to disturb the district court’s grant of
summary judgment with respect to Lege’s claim of unlawful seizure.
AFFIRMED.
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