On August 30, 2024, the Tenth Circuit Court of Appeals decided Cuervo v. Sorenson[i], in which the court examined whether officers were entitled to qualified immunity in a suit that involved allegations of unreasonable search of a residence that was pursuant to a search warrant. The relevant facts of Cuervo are as follows:
Officers in and around Mesa County, Colorado were on the hunt for a stolen Sno-Cat—a large, tracked machine, 8′ wide, 7’5″ tall, and 16’3″ long. They suspected Plaintiff’s son had parked the Sno-Cat in Plaintiff’s garage, so they rang her doorbell. Nobody answered, but at least one officer believed he observed someone inside the residence. Plaintiff’s property included both the garage and an attached residence—but only the garage could have housed the Sno-Cat.
Two hours later, officers obtained a search warrant authorizing the search of Plaintiff’s property for the Sno-Cat. The Special Weapons and Tactics (“SWAT”) units of the Mesa County, Colorado Sheriff’s Office (“MCSO”) and Grand Junction Police Department (“GJPD”) descended upon Plaintiff’s residence to execute the warrant. Officers made no further attempt to establish contact with anyone who might have been inside the residence when they returned with the warrant, but instead fired or helped fire chemical munitions into the residence. Officers did not knock and announce their presence before firing munitions or entering the residence. Officers then entered the residence and searched for the Sno-Cat. The search of the home turned up no humans—only a dog.[ii]
It is important to note that, at this stage of the litigation, the court is required to resolve disputes of fact in favor of the plaintiff, therefore, additional facts could be developed later in the case.
Cuervo sued all officers involved in the execution of the search warrant and alleged that they violated her rights under the Fourth and Fifth Amendments by exceeding the scope of the search warrant and by using excessive force that resulted in approximately $50,000 of damage to her residence. The defendant officers filed motions for qualified immunity, which were ultimately granted and the suit was dismissed. Cuervo appealed to the Tenth Circuit Court of Appeals.
The court of appeals first discussed qualified immunity. When a government official is sued under § 1983, the official may assert qualified immunity if the official was performing a discretionary function. The manner in which a search warrant is executed is a discretionary function. Thus, in order to defeat the government official’s qualified immunity, the plaintiff must satisfy a two-prong test. The court of appeals stated
A plaintiff can overcome [qualified immunity] by showing that “(1) the defendant’s actions violated a constitutional or statutory right, and (2) that right was clearly established at the time of the defendant’s complained-of conduct.” Id. (citing Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014)).[iii]
Prong 1 – Were the plaintiff’s constitutional rights violated?
The court of appeals first noted the applicable constitutional principles that apply to Cuervo’s case. The court stated
The Fourth Amendment protects the right of the people to be secure in their houses against unreasonable searches. U.S. CONST. amend. IV; accord Payton v. New York, 445 U.S. 573, 585-86, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (quoting United States v. U.S. Dist. Ct., 407 U.S. 297, 313, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972)) (“[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”). A search inside a home is presumptively unreasonable apart from the authority of a search warrant or an exception approved by the Supreme Court. United States v. Najar, 451 F.3d 710, 713 (10th Cir. 2006) (first quoting Payton, 445 U.S. at 586; and then quoting Illinois v. McArthur, 531 U.S. 326, 330, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001)).
Plaintiff argues Defendants’ search was unreasonable because they entered her residence without authority. A search warrant must describe with particularity the place to be searched and the item(s) to be seized. U.S. CONST. amend. IV. A valid warrant authorizes law enforcement to search only at the stated place and only for the stated item(s). See Mink v. Knox, 613 F.3d 995, 1010 (10th Cir. 2010) (applying the particularity requirement to limit searches not only as to the location the warrant specifies but also to the scope of the specified evidence). This means officers may search at the listed location, but only in areas where the listed item could be. See, e.g., United States v. Naugle, 997 F.2d 819, 822 (10th Cir. 1993) (quoting United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)) (concluding a warrant provided authority to enter spaces within the search premises where officers might find the specified items).[iv]
The court then noted that the search warrant authorized a search of the Cuervo’s property for the Sno-Cat, which means that the warrant authorized the officers to search anywhere the Sno-Cat could be located on property. The only place the Sno-Cat could fit was the garage, as it was 8′ wide, 7’5″ tall, and 16’3″ long. Further, the court stated that the tool box attached to the right side of the Sno-Cat was part of the description of the Sno-Cat rather than a smaller, separate object also sought in the search warrant. As such, the court of appeals held that warrant only authorized the officers to enter the garage, not the entire residence, and entry into the residence exceeded the permissible scope of the warrant.
The court of appeals also considered whether the officers used unreasonable force in executing the search warrant. Cuervo argued that the officers failed to knock and announce and forced entry doing damage to the residence.
The court examined the legal principles relevant to whether the officers were required to knock and announce and stated
When a search warrant authorizes officers to search inside a home, the officers must knock and “announce their presence and authority before entering.” United States v. Moore, 91 F.3d 96, 98 (10th Cir. 1996) (citing Wilson v. Arkansas, 514 U.S. 927, 935-36, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995)) (applying 18 U.S.C. § 3109 as a reasonableness inquiry under the Fourth Amendment). Exigent circumstances excuse this knock-and-announce requirement when officers reasonably believe an emergency exists. Id. (quoting United States v. Maden, 64 F.3d 1505, 1509 (10th Cir. 1995)). The emergency must be more than a general concern for safety. United States v. Stewart, 867 F.2d 581, 585 (10th Cir. 1989). Officers’ knowledge of unknown occupants or firearms in a house does not justify failure to knock and announce—nor does it justify destroying property. See id.; Moore, 91 F.3d at 98-99.[v]
Cuervo alleged that the officers did not knock and announce their purpose and authority prior to using chemical munitions and forcing entry into the residence. While the officers attempted to present evidence from the after-action report, that information was not admissible at this stage of the litigation, so the court of appeals could not consider that evidence. The court of appeals then held that, based on the facts within evidence, the officers lacked justification to forcibly enter the residence.
In summary, regarding the first prong to defeat qualified immunity, the court of appeals held
We conclude that under the facts properly within our consideration, Defendants lacked authority for their search of the residence because they exceeded the scope and authority of the warrant and lacked a valid exception. See Ross, 456 U.S. at 825 (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978)). Defendants lacked justification for their forcible entry. Thus, Plaintiff sufficiently alleged Defendants violated her Fourth Amendment rights based on Defendants’ entry into her residence (apart from the garage)—both physically and by shooting chemical munitions—and their use of excessive force.[vi]
Therefore, Cuervo satisfied the first prong of the requirement to defeat the officers’ qualified immunity.
Prong 2 – Was the law clearly established such that a reasonable official would have known he was violating the plaintiff’s rights?
The court of appeals then discussed the requirements needed to show that the law was clearly established. The court stated
[A] right is clearly established when our precedent encompasses ‘”materially similar conduct” or applies with “obvious clarity” to the conduct at issue.'” Sanchez v. Guzman, 105 F.4th 1285, 1292-93 (10th Cir. 2024) (quoting Shepherd v. Robbins, 55 F.4th 810, 815 (10th Cir. 2022)). Precedent must place the “constitutional question beyond debate,” Kisela v. Hughes, 584 U.S. 100, 104, 138 S. Ct. 1148, 200 L. Ed. 2d 449 (2018) (quoting White v. Pauly, 580 U.S. 73, 79, 137 S. Ct. 548, 196 L. Ed. 2d 463 (2017)), and provide “fair warning to a defendant,” Sanchez, 105 F.4th at 1293 (quoting Shepherd, 55 F.4th at 815). In the Fourth Amendment context, we require a particularly high level of specificity and even more closely analogous facts than otherwise; thus we look for precedent that “‘squarely governs’ the specific facts at issue.” Kisela, 584 U.S. at 104-05 (quoting Mullenix v. Luna, 577 U.S. 7, 12-13, 18, 136 S. Ct. 305, 193 L. Ed. 2d 255 (2015)).[vii]
Regarding the search of the residence exceeding the scope of the warrant, the court held that the law was clearly established, citing two cases from the Tenth Circuit Court of Appeals in support.[viii]
Regarding the use of force and damaged property, the court of appeals also held that the law was clearly established that the officers were required to knock and announce absent a no-knock approved search warrant or specific exigent circumstance.[ix]
Therefore, the plaintiff was able to satisfy both prongs required to defeat qualified immunity. As such, the court of appeals reversed the decision of the district court.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 22-1387 (10th Cir. August 30, 2024)
[ii] Id. at 2
[iii] Id. at 9-10 (emphasis added)
[iv] Id. at 10-11 (emphasis added)
[v] Id. at 11-12 (emphasis added)
[vi] Id. at 12-13 (emphasis added)
[vii] Id. at 13 (emphasis added)
[viii] See Peterson v. Jenson, 371 F.3d 1199 (10th Cir. 2004); see also United States v. Angelos, 433 F.3d 738 (10th Cir. 2006)
[ix] See United States v. Nielson, 415 F.3d 1195 (10th Cir. 2005)
