Mascorro v. Billings

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 31, 2011

Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

CHRISTINA MASCORRO; JOSE
MASCORRO,

Plaintiffs - Appellees,

v. No. 10-7005

CRAIG A. BILLINGS, as an individual
and as Murray County deputy sheriff,

Defendant - Appellant,

and

STEVE WATKINS, Individually and as
Sulphur police officer; TONY SIMPSON,
Individually and as a Sulphur police
officer,

Defendants.

CHRISTINA MASCORRO; JOSE
MASCORRO,

Plaintiffs - Appellees,
No. 10-7006
v.

STEVE WATKINS, Individually and as
Sulphur police officer; TONY SIMPSON,
Individually and as a Sulphur police
officer,

Defendants - Appellants,

and
CRAIG A. BILLINGS,

Defendant.

Appeal from the United States District Court
for the EasternDistrict of Oklahoma
(D.C. No. 6:09-CV-00218-FHS)

Edmond Geary, Attorney at Law, Oklahoma City, Oklahoma, for the Mascorros.

David W. Lee (Emily B. Milan with him on the briefs) of Lee Law Center, P.C.,
Oklahoma City, Oklahoma, for Watkins and Simpson.

Ambre C. Gooch of Collins, Zorn & Wagner, Oklahoma City, Oklahoma, for Billings.

Before MURPHY, HOLLOWAY, and O'BRIEN, Circuit Judges.*

O’BRIEN, Circuit Judge.

Relying mostly on their version of events, Craig Billings, a Murray County

Oklahoma deputy sheriff, and Steve Watkins and Tony Simpson, police officers with the

City of Sulphur, Oklahoma police department, appeal from the district court’s denial of

their motion for summary judgment based on qualified immunity. But the Mascorros

have a different version. Because, as the district court concluded, the issues are fact

bound, we lack jurisdiction to consider the officers’ arguments with respect to all but one

*
We have decided Case No. 10-7005 on the briefs. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G).

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claim of error. As the evidence and reasonable inferences regarding that single claim, hot

pursuit of a traffic offender, taken in the light most favorable to the Mascorros

demonstrates a violation of a clearly established constitutional right, we affirm.

I. FACTUAL BACKGROUND1

Joshua Burchett is Christina Mascorro’s son and Jose Mascorro’s stepson. At the

time of these events, Joshua was 17 years old. At 11:30 p.m. on July 23, 2007, Billings

noticed Joshua was driving without taillights and turned around to pull him over. Joshua

did not stop but drove two blocks to his parents’ house, ran inside, and hid in the

bathroom.

The front door is the only door to the Mascorro house. The Mascorros claim they

woke to Billings kicking the door in a rage, swearing, threatening and ordering someone

to open it and come outside. Christina testified to the following. She did not at first

understand to whom Billings was referring. When Jose opened the door, Billings drew

his gun, pointed it at Jose’s head and yelled, “On your knees, motherf****r!” (Appellant

Billings Appendix at p. 115.) Christina raised her voice to ask Billings to calm down and

tell them what he wanted because she could not understand him. Billings answered, “I

1
The officers make numerous impermissible arguments based on the facts as they
see them. As noted in our discussion below, our limited review of a denial of summary
judgment based on qualified immunity does not permit us to evaluate the district court’s
conclusions regarding the facts except in the most limited of circumstances. See Scott v.
Harris, 550 U.S. 372, 380-81 (2007) (reversing denial of summary judgment on qualified
immunity where videotape evidence clearly contradicted plaintiff’s version of events).
The district court found the Mascorros’ evidence supporting their version of events
sufficient to raise genuine issues of material fact. Our description of the facts reflects the
district court’s decision. We will not address arguments based on disputed facts.

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want the mother F’er driving that car out here now.” (Appellants Watkins & Simpson

Appendix at 158.) After asking Billings what car he meant, Christina noticed her son’s

car in the driveway and said “That’s my son’s car. Oh, my gosh, what did he do?” (Id. at

158). Jose asked Billings if he had a warrant. As Christina started to turn away from the

door Billings sprayed her in the face with pepper spray, and then stepped into the house

and sprayed her again. Billings then sprayed Jose and Christopher, Christina’s 14-year-

old son, directly in the face as Christina retreated to the back bedroom to call 911. At

some point after she completed her call, Officer Watkins retrieved her from the bedroom

and led her outside.

According to Jose’s testimony he retreated to the kitchen to try to wash the pepper

spray from his face. “[A]s soon as [he] kn[e]w” another officer, later identified as

Simpson, entered the kitchen and led him out of the house.2 (Watkins and Simpson

Appendix at p. 232.)

Billings informed Watkins and Simpson that Joshua had locked himself in the

bathroom. The officers ordered Joshua to come out and, when he refused, Simpson drew

his gun, kicked down the bathroom door, and took him into custody. The Mascorros

contend Billings was visibly angry during the entire encounter, screaming at the top of

his lungs and spitting with rage as he tried to speak and they did nothing to threaten or

physically resist Billings in any way.

2
Jose also filed a supplemental affidavit stating Watkins and Simpson were in the
home seconds after Billings sprayed the Mascorros “so they had to be right behind [him]”
when he used the pepper spray. (Appellants Watkins and Simpson Appendix at p. 263).

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 A number of other officers were present at the house when the Mascorros were

taken outside. According to Christina’s testimony, before Joshua was removed from the

home, Billings approached her, pushed her up against a wall, and demanded to know

where he was. When one of the officers suggested calling an ambulance Billings said,

“No one is calling any ambulance.” (Appellants Watkins & Simpson Appendix at p.

259). At some point, she requested an ambulance but Billings responded she did not

need one. Nevertheless, an ambulance was called to the scene. Billings arrested

Christina and Jose and cuffed them in the ambulance. Other officers escorted them with

Christopher to the hospital. The three Mascorros were treated and released from the

hospital, at which point officers took Christina and Jose to jail. They were both charged

with obstructing a police officer in the performance of his duties and Christina was

charged with aggravated assault and battery on a police officer because Billings alleged

and subsequently testified that she poked him in the chest when he was standing at the

front door before he sprayed her. They were released on bond later the same day. The

state court eventually quashed the arrest and dismissed the charges, concluding Billings

had entered the house illegally because no exigent circumstances justified his warrantless

entry.3 When they returned home, they found their belongings strewn about, trash cans

upended, and a hole kicked in one wall.

3
The Mascorros raised the issue of collateral estoppel below but on appeal merely
ask us to “take notice” of the state court’s determination that no exigent circumstances
justified the warrantless home entry. (Appeal No. 10-7006, Appellee Br. at p. 7).

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 II. PROCEDURAL HISTORY

The Mascorros brought this action against Billings, Watkins and Simpson4

asserting claims of unlawful entry, excessive use of force, false arrest, false

imprisonment, and malicious prosecution. Watkins and Simpson moved for dismissal on

the excessive force and malicious prosecution claims. The district court dismissed the

Mascorros’ claims of malicious prosecution against Watkins and Simpson under Rule

12(b)(6) of the Federal Rules of Civil Procedure but left all other claims intact. The

Mascorros moved for partial summary judgment and Billings, Simpson, and Watkins

moved for summary judgment based on qualified immunity and other grounds. The

district court denied the Mascorros’ summary judgment motion. It granted Billings,

Simpson, and Watkins’ motions as to claims against them in their official capacities, but

denied summary judgment on all other issues, including their qualified immunity defense.

The officers brought this interlocutory appeal on the single issue of whether they are

entitled to qualified immunity.

III. DISCUSSION

A. Issues We Cannot Address

The officers contend the district court erred in denying them qualified immunity

on each of the Mascorros’ claims. However, their arguments concerning the excessive

force, false arrest, false imprisonment and (against Billings) malicious prosecution claims

are based solely on their version of events. For instance, all the officers claim their

4
The complaint and answer were both amended. We recite the Mascorros’ claims
as set forth in the First Amended Complaint.

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actions were justified because the Mascorros refused to hand over their son to the police

and Christina assaulted Billings. The Mascorros’ version of events is different. Watkins

and Simpson allege they arrived too late to be held responsible for Billings’ use of force

and the timing of their arrival made reliance on Billings’ assertions at the scene

reasonable. 5 Again, the Mascorros saw it differently. The district court properly

determined genuine issues of material fact were present with respect to these claims. We

lack jurisdiction as to them.6

B. The Issue We Can Address

As to the Mascorros’ unlawful entry claim, however, the officers argue their entry

5
It is not necessary that a police officer actually participate in the use of
excessive force in order to be held liable under section 1983. Rather, an
officer who is present at the scene and who fails to take reasonable steps to
protect the victim of another officer's use of excessive force, can be held
liable for his nonfeasance.

Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996) (quoting Fundiller v. City of Cooper
City, 777 F.2d 1436, 1441-42 (11th Cir. 1985)). The district court concluded there was a
question of fact regarding the timing of the officers’ arrival, which calls into question
whether, in fact, they had the opportunity to intervene at some point during the spraying
and whether their subsequent acts were reasonable even if they lacked the opportunity to
prevent the use of the pepper spray in the first instance.
6
Orders denying qualified immunity are appealable to the extent that they
resolve abstract issues of law. We will not hear an appeal when the
question is the sufficiency of the evidence or the correctness of the district
court’s findings with respect to a genuine issue of material fact. An appeal
is proper if the defendant sets off to show that the law was not clearly
established at the time of the challenged action, or that qualified immunity
is proper even under the plaintiff's version of the facts. Because we may
review only legal issues, we must accept any facts that the district court
assumed in denying summary judgment.

Amundsen v. Jones, 533 F.3d 1192, 1196 (10th Cir. 2008) (citations and quotations
omitted).

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into the home was justified by probable cause to arrest Joshua for a traffic offense

coupled with the exigent circumstances necessarily attending the pursuit of a fleeing

suspect.7 The facts relating to this narrow aspect of the unlawful entry claim are not

disputed and therefore we may address the purely legal issue of whether the officers are

entitled to qualified immunity with respect to that claim.

To defeat the officers’ claim of qualified immunity, the Mascorros must show (1)

the officers violated their constitutional or statutory rights, and (2) the violated rights

were clearly established at the time of the events in question. Shroff v. Spellman, 604

F.3d 1179, 1188 (10th Cir. 2010). We have discretion to determine which prong of the

immunity defense to address first, in light of the circumstances of the case at hand, and

may resolve the question by finding either requirement is not met. Christensen v. Park

City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir. 2009) (citing Pearson v. Callahan, 129

S. Ct. 808, 818 (2009)).

C. Warrantless Entry into a Home

“It is a basic principle of Fourth Amendment law that searches and seizures inside

a home without a warrant are presumptively unreasonable.” Payton v. New York, 445

U.S. 573, 586 (1980) (quotation marks and citation omitted). “[T]he Fourth Amendment

. . . prohibits police from effectuating a warrantless and non-consensual entry into a

suspect’s home to make a routine felony arrest.” Howard v. Dickerson, 34 F.3d 978, 982

(10th Cir. 1994) (citing Payton, 445 U.S. at 576). Even an arrest warrant does not give

7
This slim tendril of legitimate argument, buried as it is in larger, mostly
improper, factual discussion, is the only reason we have not dismissed the appeal for lack
of jurisdiction.

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police carte blanche to enter any dwelling in search of the object of the warrant; while

such a warrant permits entry into the suspect’s residence to effectuate an arrest, entry into

a third party’s home for the same purpose requires a search warrant. Steagald v. United

States, 451 U.S. 204, 222 (1981). If, however, police have probable cause for an arrest,

the existence of certain exigent circumstances may “overcome the presumption of

unreasonableness that attaches to all warrantless home entries.” Welsh v. Wisconsin, 466

U.S. 740, 750 (1984); Howard, 34 F.3d at 982. “To determine the existence of an

exigency, a court must consider the gravity of the offense supporting arrest.” Howard, 34

F.3d at 982 (citing Welsh, 466 U.S. at 753). “When the government’s interest is only to

arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and

the government usually should be allowed to make such arrests only with a warrant

issued upon probable cause by a neutral and detached magistrate.” Welsh, 466 U.S. at

750 (footnote omitted). The burden is on the government to demonstrate the existence of

exigent circumstances. Id. at 749.

The officers justify their warrantless entry into the Mascorro home by probable

cause to arrest Joshua coupled with an exigent circumstance -- pursuit of a fleeing

suspect.8 The Mascorros argue the “hot pursuit” of their son under these circumstances

8
Simpson and Watkins argue their entry was justified by the need to aid the
Mascorros; they arrived only after Billings told them he had used his pepper spray.
However, the Mascorros dispute the timing of Watkins and Simpson’s entry and any
discussion on that point is not appropriate here. See Amundsen, 533 F.3d at 1196.
Simpson and Watkins also argue that under the “fellow officer rule,” they were deemed
to have relied on information possessed by Billings. See Karr v. Smith, 774 F.2d 1029,
1031 (10th Cir. 1985). The Mascorros’ evidence puts Watkins and Simpson at the scene
when they were sprayed and they have sufficiently raised a question of fact with respect

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did not constitute the kind of exigent circumstance excusing the officers from obtaining a

warrant before entering their home. They do not dispute the relevant facts: Joshua was

driving without taillights and he continued driving toward the house when Billings turned

around to follow him. And they have not refuted Billings’ assertion of probable cause to

arrest their son for the traffic offense. 9

In United States v. Santana, 427 U.S. 38 (1976), the Supreme Court concluded the

exigent circumstances, based in part on hot pursuit of a suspect, were sufficient to rebut

the presumption of unreasonableness generally attending the warrantless entry into a

home. The officers entered Santana’s home immediately following a controlled drug

transaction when she retreated into her house, still in possession of the drugs, after the

officers identified themselves and attempted to arrest her. Santana, 427 U.S. at 42-43.

Santana was in the threshold of her home when officers approached and they pursued her

into the vestibule into which she retreated without closing the front door. Id. at 40. The

Court noted the potential for destruction of evidence once Santana had seen the police

and concluded “a suspect may not defeat an arrest which has been set in motion in a

to whether Watkins and Simpson witnessed enough to preclude their reliance on Billings’
statements.
9
The officers also argue their entry was justified because Joshua eluded an officer
in violation of Okla. Stat. Ann. tit. 21, § 540A. However, the Mascorros claim Billings
did not have probable cause to arrest Joshua for eluding a police officer because while
Billings may have activated his emergency lights he never deployed his siren or any other
"audible signal" (a requirement under Oklahoma law) to signal pursuit. See Aldridge v.
State, 674 P.2d 553, 554 (Okla. Crim. App. 1984). Those technicalities do not matter;
whatever crime Joshua may have committed and for which he was pursued was a
nonviolent misdemeanor raising no articulated concerns about possible destruction of
evidence.

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public place . . . by the expedient of escaping to a private place.” Id. at 43.

Four years later the Court again addressed the issue of a warrantless arrest in a

home. In Payton v. New York, it reiterated the requirement for police to have either a

warrant or an ability to articulate exigent circumstances in order to enter a home even

where circumstances would otherwise permit a warrantless arrest for a felony. 445 U.S.

at 590. That is so because “the Fourth Amendment has drawn a firm line at the entrance

to the house. Absent exigent circumstances, that threshold may not reasonably be

crossed without a warrant.” Id.

Again addressing the question of warrantless entry, in Welsh v. Wisconsin, the

Supreme Court noted “the Court in [Payton] explicitly refused to consider the sort of

emergency or dangerous situation, described in our cases as ‘exigent circumstances,’ that

would justify a warrantless entry into a home for the purpose of either arrest or search.”

466 U.S. at 742 (quotation omitted). Officers arrested Welsh in his home for a drunk

driving offense after he left his vehicle at the scene of an accident. Id. at 740. The

underlying exigency in Welsh was not pursuit, but preservation of evidence based on the

need to collect blood and breath samples before alcohol dissipated from Welsh’s system.

Id. at 753. The Court decided the officers violated the Fourth Amendment by entering

Welsh’s home at night without a warrant to arrest him for a noncriminal traffic offense.10

In so holding, the Court looked to the cases in which it had previously found exigent

10
Driving under the influence was a “nonjailable traffic offense that constituted
only a civil violation under the applicable state law” in Wisconsin at the time. See Welsh,
466 U.S. at 746 n.6.

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circumstances permitting such an entry, including Santana. The cases involved felonies,

and the “decision in Payton, allowing warrantless home arrests upon a showing of

probable cause and exigent circumstances, was also expressly limited to felony arrests.”

Id. at 749 n.11. Because it concluded no exigent circumstances existed, the Court had

“no occasion to consider whether the Fourth Amendment may impose an absolute ban on

warrantless home arrests for certain minor offenses” but held the nature of the underlying

offense was an important consideration when determining the reasonableness of a

warrantless entry:

[A]n important factor to be considered when determining whether any
exigency exists is the gravity of the underlying offense for which the arrest
is being made. . . . [A]pplication of the exigent-circumstances exception in
the context of a home entry should rarely be sanctioned when there is a
probable cause to believe that only a minor offense . . . has been committed.

Id. at 749 n.11, 753 (emphasis added).

Immediately after Welsh, we decided Bledsoe v. Garcia, 742 F.2d 1237, 1241

(10th Cir. 1984). In Bledsoe, officers had probable cause to arrest for the misdemeanor

violation of absence without leave from military duty (A.W.O.L.) and permitted the

arrestee to reenter his parents’ home to tell his mother he was going to jail. Id. at 1238.

Officers heard the residents of the house react with profanity and yelling as someone told

the arrestee he was “not going anywhere with that son-of-a-bitch.” Id. Bledsoe’s mother

came to the door and told the officers they “were not coming in.” Id. The officers

nevertheless entered the home in pursuit of the arrestee, who escaped. Id. We held the

occupants’ disturbing reaction, coupled with resistance to the officers’ efforts and the

possibility of flight, justified the warrantless entry. Id. at 1241. Acknowledging the

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requirement imposed by Welsh, we characterized the A.W.O.L. violation as a “serious

offense” pointing out it was a misdemeanor “just below the general definition of a

felony” and held it was not error for the district court to fail to instruct the jury on exigent

circumstances where "undisputed evidence" showed exigent circumstances existed. Id.

(“Nevertheless, giving consideration to the gravity of the A.W.O.L. offense as we must in

evaluating the exigency of the circumstances and the circumstances as a whole, we hold

that the exception of exigent circumstances applied here.”) (citation omitted).

We do not find the circumstances here amount to the kind of exigency excusing an

officer from obtaining a warrant before entering a home. The intended arrest was for a

traffic misdemeanor committed by a minor, with whom the officer was well acquainted,11

who had fled into his family home from which there was only one exit. The risk of flight

or escape was somewhere between low and nonexistent. Moreover, there was no

evidence which could have potentially been destroyed12 and there were no officer or

11
Billings testified he recognized Joshua because he previously had contact with
him for drug violations and he was also a neighbor. From his testimony one might infer
he knew Joshua was a minor.
12
In a hot pursuit case, warrantless entry is in part justified by the
significant risk that the evidence would no longer be in the suspect’s
possession if the police waited until a warrant could be obtained. In such
cases, however, the intrusion is also justified by the suspect’s flight, which
frustrates police efforts to make a legitimate warrantless arrest.

Aquino, 836 F.2d at 1271 (discussing Santana as “hot pursuit of a fleeing felon”) (citation
and quotation omitted). Billings claims his prior drug-related contact with Joshua led
him to believe Joshua might have drugs concealed on his person but he offers nothing
approaching probable cause to arrest Joshua for any drug crime. In any event, the district
court found there was no basis for entry based on any imminent destruction of evidence
and we will not consider the argument based on Billings’ version of the facts.

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public safety concerns. There is nothing to indicate the sort of “real immediate and

serious consequences” of postponing action to obtain a warrant required for a showing of

exigent circumstances. See Welsh, 466 U.S. at 751. The warrantless entry based on hot

pursuit was not justified.

D. Clearly Established Law

Qualified immunity shields an officer from suit when []he makes a decision
that, even if constitutionally deficient, reasonably misapprehends the law
governing the circumstances []he confronted. Because the focus is on
whether the officer had fair notice that h[is] conduct was unlawful,
reasonableness is judged against the backdrop of the law at the time of the
conduct. If the law at that time did not clearly establish that the officer's
conduct would violate the Constitution, the officer should not be subject to
liability or, indeed, even the burdens of litigation.

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (citations omitted). “It is important to

emphasize that this inquiry must be undertaken in light of the specific context of the case,

not as a broad general proposition.” Id. at 199 (quotation omitted). We do not view the

relevant precedent “cast at a high level of generality” but look for “clear law (clear

answers) that would apply to the situation at hand.” 13 Id.

13
“[I]n an obvious case, these [more general] standards can ‘clearly establish’ the
answer, even without a body of relevant case law,” Brousseau, 543 U.S. at 199 (citing
Hope v. Pelzer, 536 U.S. 730, 738 (2002) (“noting in a case where the Eighth
Amendment violation was ‘obvious’ that there need not be a materially similar case for
the right to be clearly established”). Hope v. Pelzer, which involved punishment of a
prisoner already in custody, is not appropriately applied to the sort of dynamic situation
we are called to analyze here. Context is everything; applying the standards set forth in a
case like Hope v. Pelzer to this case would be akin to the Ninth Circuit’s over-reading of
Supreme Court precedent in Musladin v. Lamarque, 427 F.3d 653 (9th Cir. 2005). The
Ninth Circuit applied as “clearly established law” the Supreme Court’s decisions in
Estelle v. Williams, 425 U.S. 501 (1976) (analyzing prejudicial effect of compelling a
criminal defendant to appear for trial in prison clothing) and Holbrook v. Flynn, 475 U.S.
560 (1986) (applying Estelle test to presence of uniformed state troopers for security at

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 The constitutional right was clearly established for purposes of qualified immunity

if it would have been clear to a reasonable officer at the time the officers entered the

Mascorro house that their entry was unlawful under the circumstances presented.

Fogarty v. Gallegos, 523 F.3d 1147, 1155 (10th Cir. 2008). For a right to be clearly

established there must be Tenth Circuit or Supreme Court precedent close enough on

point to make the unlawfulness of the officers’ actions apparent. Weise v. Casper, 593

F.3d 1163, 1167 (10th Cir. 2010). In the alternative, “the clearly established weight of

authority from other courts must have found the law to be as the plaintiff maintains.” Id.

(quotations omitted).

Relevant precedent clearly prohibits police from routinely entering a person’s

home to effectuate a warrantless arrest (even if the officers have probable cause to

believe the person committed a felony), see Payton, 445 U.S. at 576, and a minor offense

does not permit warrantless entry into the home except in the most extraordinary of

circumstances.14 See Welsh, 466 U.S. at 753 (“[I]t is difficult to conceive of a

trial). The Ninth Circuit granted habeas relief because it concluded the state court acted
unreasonably in failing to apply the Estelle and Holbrook principles to spectators.
Musladin, 427 F.3d at 656-57. The Supreme Court reversed, concluding the extension of
concern about the conduct of state actors to that of spectators was too great to support the
Ninth Circuit’s conclusion. Carey v. Musladin, 549 U.S. 70, 77 (2006). (“Given the lack
of holdings from this Court regarding the potentially prejudicial effect of spectators'
courtroom conduct of the kind involved here, it cannot be said that the state court
unreasonably applied clearly established Federal law.”) (quotation omitted).
14
The officers point to a single case in which we implied in dicta a willingness to
interpret Welsh as permitting warrantless entry based on pursuit for minor offenses, see
United States v. Aquino, 836 F.2d 1268, 1272 n.4 (10th Cir. 1988) (characterizing the
holding of Welsh as “a nonjailable traffic offense could not support a warrantless entry
absent hot pursuit. . . .”) (emphasis added). Aquino, however, involved destruction of

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warrantless home arrest that would not be unreasonable under the Fourth Amendment

when the underlying offense is extremely minor.”). Our focus must be on whether an

exception to bedrock constitutional principles clearly exists. There appears to be no

relevant precedent announcing such an exception in cases such as this.

While hot pursuit of a felon might be sufficient, neither the Supreme Court nor

this Court15 has ever found an entry into a person’s home permissible based merely on

the pursuit of a misdemeanant; additional circumstances have always dictated the result.

Santana involved a hot pursuit of a fleeing felon as well as possible destruction of

evidence and was decided before the Supreme Court’s admonition in Welsh that the

seriousness of the offense for which officers seek to effectuate an arrest is a vital

evidence, not pursuit, and we do not consider a stray sentence characterizing Supreme
Court precedent in the footnote of an opinion sufficient to cast doubt on the
overwhelming weight of authority in this matter.
15
The officers rely heavily on an unpublished case, Sanchez v. Ulibarri, 308 Fed.
App’x 280 (10th Cir. 2009), in which the arresting officer observed Sanchez exhibiting
signs of intoxication in a convenience store and followed him after he pulled out onto the
road. Id. at 282. The officer, who was in an unmarked vehicle, watched Sanchez weave
for two or three blocks and radioed for a marked car to pull him over. Id. When Sanchez
nearly collided with oncoming traffic and forced another car off the road, the officer
activated his emergency lights and siren to pull Sanchez over himself. Id. Sanchez fled
and the chase ended in his driveway where he refused to stop walking toward the house
and told the officer he could not be arrested on his own property. Id. The officer stepped
across the threshold of the home with him, the two men struggled, and the officer
dragged Sanchez from the house and arrested him. Id. We concluded there were exigent
circumstances because the officer could reasonably have believed Sanchez posed a
danger to the public and because “a suspect may not thwart an otherwise proper arrest
that was set in motion in public by fleeing and retreating to his home.” Id. at 284.
However, because this was a habeas action, we merely decided the state court had not
unreasonably applied the Fourth Amendment even though it did not discuss Welsh in its
analysis; we therefore discount it.

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component of any exigent circumstances justifying warrantless entry into the home.

Bledsoe involved volatile behavior on the part of the occupants of the house and an adult

male arrestee who, though living with his parents at the time of the warrantless entry, had

been living in another state until a few months before officers attempted to arrest him.

Bledsoe, 42 F.2d at 1241. The AWOL offense at issue in Bledsoe is itself a flight

offense presenting heightened concerns of escape, which was borne out when the suspect

evaded arrest even though officers immediately entered the home in pursuit. Id. We

also recognized the Supreme Court’s admonition in Welsh regarding the significance of

the offense underlying the entry and characterized the AWOL offense as a serious one.

We do not rely on generalities in our application of the “clearly established”

standard here. The specific and identifiable facts of the relevant cases make clear the sort

of exigent circumstances permitting officers to enter a suspect’s home without a warrant

in pursuit of the suspect – they must involve a serious offense coupled with the existence

of an immediate and pressing concern such as destruction of evidence, officer or public

safety, or the possibility of imminent escape. These officers do not even argue such

concerns were present or that the traffic violation for which Billings had probable cause

to arrest Joshua constituted a serious offense. No reasonable officer would have thought

pursuit of a minor for a mere misdemeanor traffic offense constituted the sort of exigency

permitting entry into a home without a warrant.

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