Reeves v. Churchich

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
April 24, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

ALICIA R EEVES; ASHLEE
REEV ES,

Plaintiffs-Appellants,
No. 04-4240
v.

ALEX CH URC HICH ; KEV IN JONES;
D A V ID WIER MA N ; C . H O U SLEY,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Utah
(D .C . N o. 2:02-C V-551-D AK )

M atthew H. Raty, Law Office of M atthew H. Raty, P.C., Salt Lake City, Utah, for
Plaintiffs-Appellants.

Nicolas M . D’Alesandro, Deputy District Attorney for Salt Lake County, Utah
(David E. Yocom, District Attorney for Salt Lake County, and T.J. Tsakalos,
Deputy District Attorney, on the briefs), Salt Lake City, Utah, for D efendant-
Appellee Churchich.

J. W esley Robinson, Senior City Attorney, Salt Lake City, Utah, for Defendants-
Appellees Jones, W ierman and Housley.

Before M U R PHY , SE YM OU R and O’BRIEN, Circuit Judges.

O’BRIEN, Circuit Judge.
 On June 21, 2000, Detective Alex Churchich of the Salt Lake County

Sheriff’s O ffice attempted, with the assistance of Officers K evin Jones, David

W ierman and Christie Housley of the Salt Lake City Police Department (The

Officers), to apprehend a domestic violence suspect believed to be staying in an

upstairs apartment of a duplex. In doing so, they allegedly pointed their weapons

at Plaintiffs Alicia and Ashlee Reeves, who resided in the downstairs apartment

of the duplex, and prevented them from leaving. The Reeves claim these actions

violated their Fourth Amendment right to be free from unreasonable searches and

seizures. Detective Churchich and The Officers moved for summary judgment

based on qualified immunity. The district court granted their motions, concluding

the Reeves had failed to demonstrate a violation of their constitutional rights.

The Reeves appeal. W e exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Background

In June 2000, Alicia Reeves and her daughter Ashlee (then fourteen years

old) resided in the downstairs apartment of a duplex in Salt Lake City, Utah. Tim

and Sharon Bell lived upstairs. The front of the duplex, which contained the

duplex’s only entry, faced west. The front entrance consisted of a screen door

and a regular door, neither of which were capable of being locked. Immediately

inside the front entrance w as a small landing, with stairs leading up to the Bells’

apartment and down to the Reeves’ residence.

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 On the afternoon of June 21, 2000, Detective Alex Churchich of the Salt

Lake County Sheriff’s Office learned from a witness that Charles Diviney, who

was suspected of assaulting his estranged wife, was staying with his sister, Sharon

Bell. The witness also told Churchich that Diviney was leaving town and had

access to firearms. Based on this information, Churchich decided to attempt to

apprehend Diviney at the Bell residence.

Before proceeding to the Bell residence, Detective Churchich contacted the

Salt Lake City Police Department for assistance (i.e., an agency assist). 1 The

department dispatched Officers Kevin Jones, David W ierman, Cary W ichmann,

Ron Bruno, Christie Housley and Alton Hedenstrom. These officers met

Churchich in an abandoned lot near the Bell residence. 2 There, Churchich

advised them of the situation and informed them that although he did not have a

warrant for Diviney, he had probable cause to arrest him for assault. His intent

was to perform a “knock and talk” at the Bell residence — approach the Bell

residence and seek permission to search it for Diviney. Churchich also warned

The Officers that Diviney was possibly armed.

After some discussion, Churchich and The Officers decided Jones, Bruno

1
The Bell residence was located in Salt Lake City which is w ithin Salt
Lake County. Although the residence was within the Salt Lake County Sheriff
Department’s jurisdiction, the department’s policy was to contact the city police
department which had specific jurisdiction and allow it to assist.
2
Churchich was wearing a suit; The Officers were in uniform.

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and Housley would attempt entry into the Bell residence while Churchich,

W ierman, W ichmann and Hedenstrom performed containment duties outside the

duplex. 3 Thereafter, Churchich and The Officers proceeded to the Bell residence,

approaching it from the south. 4 Once at the residence, Churchich, armed with a

rifle and handgun, stationed himself at the southwest corner of the duplex.

W ierman, who was also armed with a rifle and handgun, and W ichmann, armed

with a handgun, proceeded to the northeast corner of the duplex. Hedenstrom

waited in the lot until the other officers arrived at the Bell residence. He then

drove his patrol car to the residence and parked it behind a truck believed to

belong to Diviney, to prevent it from leaving. Hedenstrom then proceeded to the

northeast corner of the duplex to perform containment behind Officers W ierman

and W ichmann. The remaining officers, Jones, Bruno and Housley, entered the

duplex with their handguns drawn. 5

The Reeves were in their apartment. Alicia was on the living room couch

starting to take a nap. Ashlee was taking a shower. W hen she finished, Ashlee

3
The purpose of containment is to prevent the suspect from fleeing out the
back of the residence.
4
Although Churchich w as aware the B ell residence was the upstairs
apartment of a duplex, it is unclear whether The O fficers knew this.
5
Jones, Bruno and Housley carried their handguns either at their sides and
pointing to the ground or in the “low ready” position. The “low ready” position
involves the police officer gripping the gun with both hands in front of him while
pointing it to the ground.

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w ent into her bedroom to get dressed. Through her opened but barred window, 6

she observed individuals she believed to be police officers walking with guns at

their side. She then heard one of the individuals, allegedly Officer W ierman, say

“Hold it right there.” (R. Vol. II at 470.) She immediately grabbed her towel

(she was still naked) and ran into the living room. 7 Ashlee woke Alicia, telling

her there were people with guns in the backyard. Alicia, still half asleep and

groggy, told Ashlee to go to Alicia’s bedroom and get dressed while she

determined what was going on.

W hile in her mother’s bedroom, Ashlee observed a rifle barrel, alleged to

be Detective Churchich’s, through the open but barred window. The barrel was

“moving around,” following her movement. (R. Vol. II at 469.) Ashlee then

heard someone say “Get down on the ground.” (Id.) In response, Ashlee reached

up, closed the blinds and ran out of the room to find her mother. 8

The dog was barking and would not go out the front door. Alicia decided

6
None of the windows in the Reeves’ apartment had screens. However, all
of the window s had bars.
7
According to W ierman, he saw “some movement” through the downstairs
apartment w indow. (R. Vol. II at 336.) W hen he observed this, he said “Police.
Don’t move.” (Id. at 337 (quotations omitted).) Because it was a possible threat,
he also pointed his rifle at the w indow. By the time he made this order, however,
the “movement” was already heading west toward the front of the residence, out
of W ierm an’s view .
8
Churchich denies looking into or pointing his rifle into any ground level
window. However, he accepted Ashlee’s version of events for purposes of his
summary judgment motion.

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to take her dog outside. W hen she reached the duplex’s front entrance, she bent

forward to pick up her dog. W hen she stood up, she met Officer Jones, who had

just turned around, with his gun pointing at her head. 9 In shock, Alicia pushed

the gun aw ay and said “D on’t point that gun at me. W hat’s the problem? W hat’s

going on?” (R. Vol. I at 207.) She then heard A shlee scream and ran downstairs

to investigate.

Once downstairs, Alicia could see police officers circling her apartment.

Scared, she told Ashlee to lie down behind the couch. Ashlee complied and

Alicia went back upstairs. She again met Officer Jones and asked him to explain

what the officers w ere doing. After receiving no answ ers, she went downstairs to

her apartment to check on Ashlee.

W hile there, Alicia heard commotion upstairs. She went outside her door

and saw officers pulling Sharon Bell out of the Bell residence. 10 Alicia asked

what was going on. Officer Housley told her it was none of her business and to

go back inside her apartment. Alicia responded, “It is m y business. You are in

9
Jones w as not deposed. However, Bruno and Housley testified Jones did
not point his weapon at Alicia. Housley stated Alicia was leaving through the
front door of the duplex just as she, Jones and Bruno were approaching it. They
asked Alicia w hich residence belonged to the Bells; Alicia pointed to the upstairs
apartment. In any event, Churchich and The Officers admitted Jones pointed his
weapon at Alicia for purposes of their summary judgment motions.
10
According to Alicia, The Officers grabbed Sharon Bell by her shirt, threw
her down on the ground and held her down. Alicia stated she yelled at The
Officers, trying to get them to stop hurting Sharon. Sharon Bell filed a law suit
against Churchich and The Officers, which was settled.

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my apartment. You are in my home. You are . . . invading me. You need to tell

me what’s going on.” (R. Vol. I at 209.) Housley replied, “Get back in your

apartment, bitch[.]” 11 (Id.) Alicia responded, “I am not leaving. I want to know

what’s going on.” (Id. at 211.)

Alicia then began yelling — asking The Officers whether they had a

warrant, w hat was going on and would somebody please talk to her. By that time,

Churchich had been called from his containment position to the Bell residence.

W hile standing on the landing inside the duplex’s main entrance, Churchich lifted

his rifle (which had been pointing at the ground at his side) about three feet and

told Alicia to get back in her apartment. Because Alicia was standing below him,

when Churchich lifted his rifle, it was pointed at her. 12 She refused to go back

inside her apartment and remained outside until Churchich, The Officers and

Sharon Bell went inside the Bell residence. At that time, Alicia went to check on

Ashlee.

After checking on Ashlee, Alicia again left her apartment. At the landing,

she was met by Officer Jones, who asked her questions for his report. After

talking with him for a few minutes, she returned to her apartment.

11
Housley denies calling Alicia a “bitch.”
12
Churchich denies pointing his rifle at Alicia. In fact, he testified he does
not recall seeing or talking with Alicia on the day of the incident. However, he
admitted this allegation for purposes of his summary judgment motion. In an
affidavit Sharon Bell said she heard Churchich tell Alicia to go back inside her
apartment and saw him point his rifle at her.

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 Upon learning that Diviney was not at the Bell residence, Churchich and

The Officers left the scene. Diviney was later apprehended by the Las Vegas

Police Department.

On June 6, 2002, the Reeves filed a civil rights complaint against

Churchich, Jones, W ierman, and Housley alleging violations of a Fourth

Amendment right to be free from unlawful searches and seizures. 13 The Reeves

also claimed Churchich, as The Officers’ supervisor, was liable for their allegedly

unconstitutional actions. 14 In M arch and M ay 2004, Churchich and The O fficers

filed motions for summary judgment asserting qualified immunity. On September

2, 2004, the district court granted both motions. Judgment was entered five days

later. This timely appeal followed.

II. Discussion

The Reeves claim the district court erred in granting summary judgment on

the qualified immunity and supervisor liability claims.

13
The complaint also named police officers Bruno, W ichmann, Hedenstrom
and Louie M uniz, as well as Salt Lake County Sheriff’s Officer Ray Lopez and
Detective Odor. M uniz, Lopez and Odor played little or no role in assisting
Detective Churchich in the attempted apprehension of Diviney. The Reeves
stipulated to these officers’ dismissals without prejudice in M arch 2003 and M ay
2004.
14
The Reeves further asserted pendent state law claims of assault, unlawful
detention and intentional infliction of emotional distress. The district court
granted judgment in favor of Churchich and The Officers on these claims
pursuant to the Utah Governmental Immunity Act. The Reeves do not challenge
this ruling on appeal.

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A. Qualified Immunity

W e review a grant of summary judgment based on qualified immunity de

novo, applying the same legal standard used by the district court. Lawmaster v.

Ward, 125 F.3d 1341, 1346 (10th Cir. 1997). Summary judgment should be

granted “if the pleadings . . . together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” F ED . R. C IV . P. 56(c). In conducting our review ,

“[w]e view the evidence and draw reasonable inferences therefrom in the light

most favorable to the nonmoving party.” Lawmaster, 125 F.3d at 1346.

“In an action under section 1983, individual defendants are entitled to

qualified immunity unless it is demonstrated that their alleged conduct violated

clearly established constitutional rights of which a reasonable person in their

positions would have known.” M urrell v. Sch. Dist. No. 1, Denver, Colo., 186

F.3d 1238, 1251 (10th Cir. 1999). Once a defendant has raised qualified

immunity as an affirmative defense, the plaintiff bears the heavy two-part burden

of demonstrating that (1) the defendant violated a constitutional right and (2) the

constitutional right was clearly established at the time of the alleged conduct.

Reynolds v. Powell, 370 F.3d 1028, 1030 (10th Cir. 2004). Our inquiry must be

conducted in that order; in other words, we must first address whether the alleged

facts demonstrate the defendant’s conduct violated a constitutional right. Saucier

v. Katz, 533 U.S. 194, 201 (2001). If the court concludes no constitutional right

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has been violated, no further inquiry is necessary and the defendant is entitled to

qualified immunity. Id.

1. Violation of Constitutional Right

In this case, the district court found Churchich and The O fficers were

entitled to qualified immunity because the Reeves had failed to show they

violated a constitutional right. Specifically, the court concluded that even

assuming a search or seizure occurred under the Fourth Amendment, the conduct

was objectively reasonable under the totality of the circumstances.

The Reeves challenge this ruling, arguing they demonstrated Churchich and

The Officers violated their Fourth Amendment right to be free from unreasonable

searches and seizures. Specifically, they claim they were unlawfully seized when

(1) W ierman pointed his rifle at Ashlee and ordered her not to move, 15 (2)

Churchich pointed his rifle at Ashlee and ordered her to get down on the ground,

(3) Jones pointed his handgun at Alicia’s head, 16 and (4) Churchich pointed his

rifle at Alicia and told her to return to her apartment. They also assert

15
In neither her deposition nor affidavit did Ashlee testify that Officer
W ierman pointed his rifle at her. She simply stated she observed officers w ith
guns at their side in the backyard and heard one of them say “Hold it right there.”
(R. Vol. II at 470 (quotations omitted).) However, Wierman admitted at his
deposition that when he saw “some movement” through Ashlee’s bedroom
window, he pointed his rifle towards the movement. (Id. at 336.)
16
In their opening brief, the Reeves allege that when Officer Jones pointed
his handgun at Alicia’s head, he ordered her to “[h]old it right there.”
(Appellants’ Opening Br. at 10.) This command is not supported by the Reeves’
record citations; thus, we disregard it.

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Churchich’s insertion of his rifle into the interior of Alicia’s bedroom constituted

an unreasonable search. M ore generally, the Reeves assert the overall conduct

towards them, i.e., weapons repeatedly pointed at them, ordering them not to

leave their apartment and the tone and harshness of their commands, conveyed to

them they were not free to ignore Churchich and The Officers’ presence and go

about their business and thus constituted an unlawful seizure of their persons

within the meaning of the Fourth Amendment.

W e begin w ith the Reeves’ specific arguments.

a. Whether Churchich, Jones and Wierman unlawfully seized the
Reeves by pointing their weapons at them and making verbal
com mands.

The Reeves claim they were unlaw fully seized when W ierman pointed his

rifle at Ashlee and ordered her not to move, Churchich pointed his rifle at Ashlee

and ordered her to the ground, Jones pointed his handgun at Alicia’s head and

Churchich pointed his rifle at Alicia and told her to return to her apartment.

Churchich and The Officers argue no seizure occurred because the Reeves failed

to submit to these assertions of authority. W e agree.

The Fourth Amendment prohibits unreasonable seizures of an individual’s

person by law enforcement. U.S. C ONST . amend. IV. However, “not all personal

intercourse between policemen and citizens involves ‘seizures’ of persons.”

Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). “Only when the officer, by means of

physical force or show of authority, has in some way restrained the liberty of a

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citizen may we conclude that a ‘seizure’ has occurred.” Id.

In C alifornia v. H odari D ., the Court expounded on the “show of authority”

requirement for a seizure. 499 U.S. 621 (1991). There, Hodari tossed crack

cocaine from his person while engaged in a foot chase with the police. The issue

was whether he had been “seized” by the police at the time he discarded the

drugs. Because he had not been physically touched by the police at the time he

tossed the drugs, Hodari relied on the “show of authority” language from Terry.

Specifically, he claimed that because the police pursuit qualified as a “show of

authority” calling upon him to halt, he was seized. The Court disagreed, holding

a police officer’s assertion of authority does not constitute a seizure unless the

person actually submits. Id. at 626. Thus, because Hodari did not stop in

response to the police pursuit, no seizure occurred. Id. at 629.

W e applied Hodari in United States v. Harris, 313 F.3d 1228 (10th Cir.

2002). There, a police officer approached Harris asking him for his

identification. Harris ignored the officer and continued walking. The police

officer again asked Harris for identification; he again ignored the request and

walked past the officer. Harris then placed his hands in his pockets and began

walking backwards facing the police officer. Fearing Harris was concealing a

weapon, the police officer asked him to remove his hands from his pockets.

W hen Harris refused, the officer removed them for him and escorted Harris to the

police car. On appeal, Harris argued the police officer seized him when the

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officer began asking for identification. W e disagreed:

[Harris] ignored [the officer] and continued walking both times that [the
officer] requested his identification. Therefore, even if [the officer’s]
requests for identification could be construed as an “assertion of
authority,” [Harris] did not submit to it. Accordingly, [Harris] was not
seized for purposes of the Fourth Amendment until [the officer]
implemented physical force by removing [Harris’] hands from his
pockets and escorting him to the police car.

Id. at 1235.

Similarly, in Bella v. Chamberlain, the plaintiff, while piloting his helicopter,

was taken hostage at gunpoint and required to assist in the escape of several inmates

from prison. 24 F.3d 1251 (10th Cir. 1994). During law enforcement’s attempt to

capture the escaped inmates, an officer fired three rounds at the fleeing helicopter,

one of which hit the aircraft. Despite his helicopter being hit, the plaintiff

continued to flee. The plaintiff brought suit against the police officer, arguing, inter

alia, that the officer used excessive force in violation of the Fourth Amendment.

Relying on H odari D ., we concluded no seizure occurred. Although we found the

police officer’s firing of his gun constituted an assertion of authority, we concluded

no seizure occurred because the shots “did not cause [the plaintiff] to submit nor did

they otherwise succeed in stopping him.” Id. at 1256 (footnote omitted); see also

Latta v. Keryte, 118 F.3d 693, 700 (10th Cir. 1997) (holding unsuccessful pursuit of

the defendant on interstate not a seizure; “[w]hile the pursuit constituted an

assertion of authority, the pursuit did not cause M r. Latta to submit to the authority

or succeed in stopping him”).

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 In this case, Churchich, Jones and W ierman did not physically touch either

Ashlee or Alicia. 17 However, they clearly asserted their police authority by pointing

their weapons and making verbal comm ands. Nevertheless, in each situation,

neither Ashlee nor Alicia submitted to these assertions of authority. W hen W ierman

pointed his rifle at Ashlee and ordered her not to move, she ran out of the room. In

response to Churchich pointing his rifle at her and ordering her to get on the ground,

Ashlee closed the blinds on the window and ran out of the room. W hen Jones

pointed his handgun at her head, Alicia pushed the gun away. In response to

Churchich pointing his rifle at her and ordering her to return to her apartment,

Alicia remained standing outside her apartment. Under Hodari D. and its progeny,

the Reeves’ failure to submit to Churchich, Jones and W ierman’s assertions of

authority precludes a finding that they were seized by these actions. At most, these

officers attempted to seize the Reeves, which is insufficient. Hodari D., 499 U.S. at

626 n.2.

The Reeves do not dispute that they did not submit to Churchich, Jones and

17
W hen she initially recounted the events of June 21 at her deposition,
Alicia testified Officer Jones pointed his gun at her face. Later in her deposition,
she stated the gun physically touched her face. In their response to the motions
for summary judgment and opening brief, the Reeves do not allege Jones’ gun
physically touched Alicia. They merely claim Jones “put his handgun to her
head” and “pointed it at her head.” (R. Vol. I at 166; Appellant’s Opening Br. at
9-10.) In any event, even assuming Jones’ handgun touched Alicia’s face, no
seizure occurred because she failed to submit to this assertion of authority. Bella,
24 F.3d at 1256 (finding no seizure occurred even though one of the officer’s
shots hit the helicopter).

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W ierman’s assertions of authority. However, they argue they acted reasonably

under the circumstances. Because she was naked, the Reeves assert Ashlee

reasonably ignored W ierman and Churchich’s commands by running from the room.

The Reeves also contend Alicia acted reasonably in pushing Jones’ gun away from

her head. W e do not necessarily disagree. How ever, the reasons behind the Reeves’

failure to submit are immaterial to our analysis. For instance, in Bella, we

recognized the plaintiff was unable to submit to the officer’s show of authority

because he w as being held hostage at gunpoint. 24 F.3d at 1256 n.5. Nonetheless,

we concluded this fact did not affect our conclusion that the plaintiff was not seized

by the police officer’s firing of his weapon at the plaintiff’s helicopter. Id. Thus,

just as w e objectively examine a police officer’s conduct under the Fourth

Amendment, Brigham City, Utah v. Stuart, -- U.S. --, 126 S.Ct. 1943, 1948 (2006),

the Reeves’ subjective motives behind their failure to submit are irrelevant.

Because we conclude Churchich, Jones and W ierman’s actions did not result

in a seizure of the Reeves’ persons, we need not determine whether such seizure was

objectively reasonable.

b. Whether Churchich’s insertion of his rifle into Alicia’s bedroom
constituted an unlawful search.

The Reeves contend the insertion of Churchich’s rifle into the interior of

Alicia’s bedroom window was a search under the Fourth Amendment because the

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rifle crossed the “threshold of the home” 18 and Churchich followed Ashlee’s

movements with it, thereby invading her privacy. (Appellants’ Opening Br. at 19.)

Churchich argues the momentary insertion of his rifle through Alicia’s open but

barred bedroom window did not constitute a search under the Fourth Amendment.

Even assuming the “threshold of the home” can be applied to a window, he claims

the objective of the Fourth Amendment is to protect one’s privacy. He alleges his

rifle was not a surveillance device and it was not inserted for the purpose of

“searching.” (A ppellee Churchich’s B r. at 20.) Therefore, he asserts no private

matter w as revealed by the insertion of his rifle into Alicia’s window.

A search under the Fourth Amendment “occurs when an expectation of

privacy that society is prepared to consider reasonable is infringed.” United States

v. Jacobsen, 466 U.S. 109, 113 (1984). W hether an individual has a constitutionally

protected reasonable expectation of privacy in an object or place is a two-fold

inquiry: (1) whether the individual has manifested a subjective expectation of

privacy in the object or place to be searched and (2) whether that expectation is one

society is prepared to recognize as reasonable. United States v. Hatfield, 333 F.3d

1189, 1195 (10th Cir. 2003). “[T]he burden of establishing a legitimate expectation

18
Ashlee testified Churchich’s rifle came through Alicia’s bedroom
window, “so it was farther than the [window’s] ledge, [which is] inside the
room.” (R. Vol. II at 470-71.) She later testified the rifle was “even up with the
ledge or maybe a little bit over.” (Id. at 471.) In her affidavit, she stated the rifle
“had been put through the foliage and bars on the window” and its barrel “was
inside [the] bedroom.” (Id. at 537.) Thus, we assume the rifle entered the room.

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of privacy is on the party claiming a Fourth Amendment violation, and we have

applied that same rule to a claimed invasion of the curtilage.” United States v.

Cavely, 318 F.3d 987, 994 (10th Cir. 2003) (citation omitted).

It is well-settled an individual has a reasonable expectation of privacy in the

interior of one’s home and its curtilage. Kyllo v. United States, 533 U.S. 27, 34

(2001); Oliver v. United States, 466 U.S. 170, 180 (1984); see also Hatfield, 333

F.3d at 1196 (“[P]rivacy in the interior of a home and its curtilage are at the core of

what the Fourth Amendment protects . . . .”). H owever, “[w]hat a person knowingly

exposes to the public, even in his own home or office, is not a subject of Fourth

Amendment protection.” Katz v. United States, 389 U.S. 347, 351 (1967); see also

California v. Ciraolo, 476 U.S. 207, 213 (1986) (“The Fourth Amendment

protection of the home has never been extended to require law enforcement officers

to shield their eyes when passing by a home on public thoroughfares.”). Therefore,

no Fourth Amendment search occurs if a police officer makes observations w hile in

a public place or open field, even if the objects he observes lie within an area

protected by the Fourth Amendment. United States v. Dunn, 480 U.S. 294, 304

(1987). This proposition, however, is not without limitations. If those observations

are obtained by a device not in general public use and they reveal information

regarding the interior of the home that could not otherwise have been obtained

without physical intrusion, such observations are a search under the Fourth

Amendment. Kyllo, 533 U.S. at 40.

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 In this case, the Reeves do not argue Churchich unlawfully entered the

duplex’s front yard, and rightly so. Although the Reeves have a constitutionally

protected reasonable expectation of privacy in the interior of their apartment, they

have no such expectation in the duplex’s front yard where Churchich was standing

when he allegedly pointed his rifle through Alicia’s bedroom window. There is no

evidence the front yard is enclosed or otherwise shielded to prevent passersby from

view ing the activities conducted there. There is also no evidence the Reeves could

exclude others from the yard and it appears they shared the yard with the Bells.

The yard is also not part of the duplex’s curtilage. “[C]urtilage is the area to

which extends the intimate activity associated with the sanctity of a man’s home and

the privacies of life.” Oliver, 466 U.S. at 180 (quotations omitted). It is entitled to

the same Fourth Amendment protections that attach to the home itself. Id. W e

consider four factors in determining whether an area around a house is considered

curtilage: (1) the proximity of the area to the home; (2) whether the area is included

within an enclosure surrounding the home; (3) the nature of the uses to which the

area is put, specifically, whether the area is used for the intimate activities of the

home; and (4) the steps taken by the resident to protect the area from observation.

Dunn, 480 U.S. at 301; United States v. Cousins, 455 F.3d 1116, 1122-23 (10th Cir.

2006). Applying these factors, although the front yard is in close proximity to the

duplex, there is no evidence it (or any part thereof) is enclosed, is used for intimate

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activities of the home or is in any way protected from observation. 19 Thus, we |

conclude the front yard is not within the duplex’s curtilage but rather is an “open

field.” Dunn, 480 U.S. at 304 (“[T]he term ‘open fields’ may include any

unoccupied or undeveloped area outside of the curtilage. An open field need be

neither ‘open’ nor a ‘field’ as those terms are used in comm on speech.”) (quotations

omitted)). Therefore, Churchich’s entry into the yard did not violate the Fourth

Amendment. Oliver, 466 U.S. at 181 (“[A]n individual has no legitimate

expectation that open fields will remain free from warrantless intrusion by

government officers.”); Cousins, 455 F.3d at 1124 (concluding that because the

defendants’ sideyard did not fall within the curtilage of their home, law enforcement

presence in the sideyard did not violate the Fourth Amendment). Consequently,

Churchich’s mere visual observation of objects or people inside the Reeves’

apartment through Alicia’s bedroom window from the front yard was not a search

under the Fourth Amendment. 20 See Dunn, 480 U.S. at 303-05 (finding police

19
The Reeves’ argument expects us to presume their front yard was
curtilage. They assume too much. There were no proofs regarding the Dunn
curtilage factors and nothing in the record suggests the Reeves had a reasonable
expectation of privacy in the front yard of a jointly occupied apartment. See
Cavely, 318 F.3d at 994 (“The record before us contains no evidence on these
matters [Dunn factors], and appellant did not ask the district court to make any
findings with respect thereto.”). Absent contrary facts and findings, the correct
presumption would be that an unenclosed yard, used for no particular purpose
(but shared with other tenants), adjacent to the street, and in no way shielded
from observation or trespass is not curtilage.
20
The fact Alicia’s window contained bars covered in foliage does not
detract from this conclusion. “[T]he mere fact that an individual has taken

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officer’s visual observation of barn’s interior by peering into its open front with a

flashlight while standing outside the curtilage and in the open fields did not

constitute a search); Hatfield, 333 F.3d at 1194 (finding officer’s visual observation

of the defendant’s backyard from an open field (the defendant’s pasture) did not

constitute a search).

However, Churchich’s conduct in this case was not limited merely to

observation with the naked eye. Rather, he inserted his rifle past the w indow’s

ledge and followed Ashlee’s movements with it. The Reeves allege this intrusion

constituted a search under the Fourth Amendment. The question presented in this

case is whether a police officer, while standing in an open field, conducts a search |

by inserting his rifle into the interior of a home and using it to follow the movement

of a person therein.

Not surprisingly, we have unearthed no cases directly on point. That is

because when a police officer uses his weapon, it is normally to threaten or inflict

deadly force. Under those circumstances, the inquiry is whether such use

constitutes a seizure, not a search, under the Fourth Amendment. As discussed

above, Churchich’s pointing of his rifle at Ashlee through Alicia’s bedroom window

measures to restrict some views of his activities [does not] preclude an officer’s
observations from a public vantage point where he has a right to be and which
renders the activities clearly visible.” Ciraolo, 476 U.S. at 213. Additionally,
Alicia’s bedroom window was open. There is no allegation that Churchich moved
the window’s blinds, either with his rifle or hand, to obtain a better view of the
home’s interior.

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did not constitute a seizure because she failed to submit to this show of authority.

W e have also uncovered limited case law addressing whether a police officer

conducts a search merely by sticking an object he is holding into a home’s interior.

In most cases, the police officer’s person, or parts of his person, enter the home.

Thus, w e are left to analogize this case to existing precedent. Having done so, w e

conclude Churchich’s insertion of his rifle into the interior of the Reeves’ home and

following Ashlee’s movement with it was not a search because the rifle was

incapable of obtaining information and did not obtain any information beyond that

which was observed by Churchich standing in the common area. Nor did the

insertion of the rifle through the window enable C hurchich to see that which would

not otherwise be visible.

In Silverman v. United States, police officers used a “spike mike” to

eavesdrop on the defendants’ conversations. 365 U.S. 505 (1961). The officers

inserted the spike under a baseboard of an adjoining house until the spike hit a

heating duct serving the defendants’ house. The Court found such intrusion into the

home, even if it was only by a “fraction of an inch,” w as a search under the Fourth

Amendment. Id. at 511-12.

In United States v. Knotts, police officers learned Tristan Armstrong was

purchasing chemicals used in the manufacture of illegal drugs from the Hawkins

Chemical Company (Hawkins). 460 U.S. 276 (1983). W ith Hawkins’ permission,

the officers installed a beeper inside a five-gallon container of chloroform, one of

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the chemicals being purchased. Hawkins agreed that when Armstrong next

purchased chloroform, this container would be given to him. W hen Armstrong

made the purchase, the officers followed his vehicle, maintaining contact with the

car using both visual surveillance and the beeper. Armstrong proceeded to co-

defendant Darryl Petschen’s house, where the container was transferred to

Petschen’s vehicle. The officers then followed that vehicle, until it began making

evasive maneuvers, at which time the officers ended their visual surveillance.

Almost simultaneously, the officers lost the beeper’s signal. An hour later, the

officers recovered the signal. Its location was identified as Leroy Knotts’ cabin.

Over the next three days, the officers performed visual surveillance of the cabin.

They eventually secured a search warrant, its execution uncovering a clandestine

drug laboratory. Knotts was arrested and convicted for conspiring to manufacture

controlled substances.

Knotts argued the officers’ monitoring of the beeper without a warrant

violated the Fourth Amendment. The Supreme Court disagreed. It concluded the

monitoring had not invaded Knotts’ legitimate expectations of privacy and thus was

not a search under the Fourth Amendment. Id. at 285. It explained:

Admittedly, because of the failure of the [officers’] visual surveillance,
the beeper enabled the [officers] to ascertain the ultimate resting place of
the chloroform when they would not have been able to do so had they
relied solely on their naked eyes. But scientific enhancement of this sort
raises no constitutional issues which visual surveillance w ould not also
raise. A police car following Petschen at a distance throughout his
journey could have observed him leaving the public highway and arriving

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 at [Knotts’ cabin], with the drum of chloroform still in the car. This fact,
along with others, was used by the government in obtaining a search
warrant w hich led to the discovery of the clandestine drug laboratory. But
there is no indication that the beeper was used in any way to reveal
inform ation as to the movement of the drum within the cabin, or in any
way that would not have been visible to the naked eye from outside the
cabin.

Id. at 285 (emphasis added).

The Supreme Court distinguished Knotts in United States v. Karo, 468 U.S.

705 (1984). There, an agent with the Drug Enforcement Administration learned

James Karo, Richard Horton and W illiam H arley had ordered fifty gallons of ether

from a government informant. The ether was to be used to extract cocaine from

clothing that had been imported into the United States. The agent obtained a court

order authorizing the installation and monitoring of a beeper in one of the cans of

ether. Thereafter, the agent observed Karo pick up the ether from the informant.

The agent followed Karo to his house using both visual and beeper surveillance.

Over the course of the next several months, the agent tracked the ether’s movement

from various locations to a rental house in Taos, New M exico. Once the ether

arrived at the rental house, the agent used the beeper to determine the ether

remained in the home despite vehicles leaving the residence. W hen the agent

noticed the windows of the house were wide open on a cold, windy day, he

suspected the ether was being used. The next day, the agent applied for and

received a search warrant for the Taos residence based in part on information

derived from the use of the beeper. The search revealed cocaine and laboratory

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equipment.

The defendants challenged the agent’s installation and monitoring of the

beeper under the Fourth Amendment. The Supreme Court concluded the mere

transfer of the can containing a beeper to Karo was not a search under the Fourth

Amendment because at that time the beeper was not conveying any information. Id.

at 712. However, the Court held the monitoring of the beeper while it was located

within the Taos residence constituted a search under the Fourth Amendment. Id. at

714-15. In doing so, it distinguished Knotts, where the beeper told the officers

nothing about the interior of Knotts’ cabin and all of the information obtained could

have been obtained through visual surveillance. Id. at 715.

Lastly, in United States v. Concepcion, police officers arrested Concepcion,

seizing his possessions, including his keys. 942 F.2d 1170 (7th Cir. 1991). The

officers found a mailbox with his last name at a nearby apartment complex. One of

Concepcion’s keys opened the outer door of the apartment building. Once inside the

building, the officers used the key to open apartment 1C. They opened the door an

inch, then immediately closed and locked it without looking inside. Concepcion

argued, inter alia, that the entry of the key into his apartment door’s lock

constituted a search. The Seventh Circuit agreed:

A keyhole contains information— information about who has access to the
space beyond. As the fourth amendment protects private information
rather than formal definitions of property, the lock is a potentially
protected zone. And as the tumbler of a lock is not accessible to
strangers, . . . the use of an instrum ent to examine its workings (that is, a

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 key) looks a lot like a search. . . . Because the agents obtain information
from the inside of the lock, which is both used frequently by the owner
and not open to public view, it seems irresistible that inserting and turning
the key is a search.

Id. at 1172 (citations and quotations omitted). 21

In both Silverman and Concepcion the courts found the police officers’

insertion of an object into the home, or at least its lock, constituted a search.

However, in both cases, that insertion conveyed information. In Silverman, the

insertion of the spike allowed the officers to listen to conversations they would

otherwise not have been able to hear. In Concepcion, the officers’ insertion of the

key informed the officers that the apartment belonged to the defendant. Here, no

information was obtained by insertion of the rifle into the Reeves’ home.

In Knotts and Karo, the police officers themselves did not enter the home.

However, like this case, they caused an object to do so. Nevertheless, the mere fact

the object entered the home did not automatically transform the officers’ actions

into a search. Rather, only when the object revealed information that could not have

been obtained by visual observation alone did a search occur. Indeed, in Karo, the

Court found: “The mere transfer to Karo of a can containing an unmonitored beeper

infringed no privacy interest. It conveyed no information that Karo wished to keep

private, for it conveyed no inform ation at all.” 468 U.S. at 712 (emphasis added).

21
But see United States v. Lyons, 898 F.2d 210, 212 (1st Cir. 1990)
(insertion of key seized from the defendant into padlock of storage unit for
purposes of identifying ownership not a search).

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The same is true here. The insertion of the rifle into the open window revealed no

information Churchich could not have obtained by visual observation alone. Indeed,

it neither conveyed information nor facilitated Churchich’s ability to attain

information from within the apartment. At most then, the insertion of the rifle

constituted a common law trespass, not a Fourth Amendment violation.

Of course, a police officer’s mere entry or trespass into a home w ithout

consent is enough to constitute a search, often referred to in the case law as an

“unlawful entry.” See, e.g., Brigham City, 126 S.Ct. at 1947-48 (2006) (finding

police officers’ warrantless entry into home without consent is a search but a

reasonable one under exigent circumstances exception to w arrant requirement);

United States v. Najar, 451 F.3d 710, 720 (10th Cir.) (same), cert. denied, 127 S.Ct.

542 (2006); United States v. Carter, 360 F.3d 1235, 1241-42 (10th Cir. 2004)

(concluding police officer’s warrantless entry into backyard and garage was an

unreasonable search because it was not supported by exigent circumstances or

justified as a protective sw eep); see also 2 W AYNE R. L A F AVE ET AL ., C RIMINAL

P ROCEDURE § 3.2(c) (2d ed. 1999) (“Because the home is accorded the full range of

Fourth Amendment protections, it is beyond question that an unconsented police

entry into a residential unit, be it a house, apartment, or hotel or motel room,

constitutes a search under Katz.”) (quotations and footnote omitted). H owever, a

police officer possesses sensory capabilities, i.e., the ability to obtain information.

Indeed, in each of the cited cases, the police officers entered the home to seek

-26-
information that could not have been obtained absent an intrusion. Brigham City,

126 S.Ct. at 1946 (entry to investigate observed altercation); Najar, 451 F.3d at 719

(entry to determine whether 911 caller w as inside home); Carter, 360 F.3d at 1238

(entry into backyard and garage to secure it and prevent destruction of evidence). A

rifle, on the other hand, does not possess sensory capabilities and its insertion in this

case was not for purposes of obtaining information.

Because Churchich’s insertion of his rifle inside Alicia’s bedroom was not a

search, we need not determine w hether it was objectively reasonable. W e now turn

to the Reeves’ argument that they were unlawfully seized by Churchich and The

Officers’ overall conduct at the scene.

c. Whether Churchich and The Officers’ overall conduct towards
the Reeves at the scene constituted an unlawful seizure.

The Reeves contend the overall conduct towards them at the scene conveyed

to them they were not free to ignore Churchich and The Officers’ presence and go

about their business and thus constituted a seizure of their persons within the

meaning of the Fourth Amendment. 22 Churchich and The Officers argue their

actions did not seize the Reeves. They claim it is undisputed that neither Alicia nor

22
Although we have concluded the Reeves were not seized when
Churchich, Jones and W ierman pointed their weapons and made verbal comm ands
toward them, the Reeves could have potentially been unlawfully seized at other
times during the encounter. Therefore, in resolving the Reeves’ argument that
they were illegally seized by Churchich and The Officers’ overall conduct at the
scene, we look to the entire encounter, not merely the specific instances addressed
earlier.

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Ashlee was physically restrained, informed they were being detained or told they

were not free to leave. Indeed, Churchich and The Officers allege the Reeves never

asked whether they were free to go or stated they wished to leave the apartment.

They point out Ashlee never attempted to leave the apartment and never spoke with

any of them. In fact, they allege it w as Alicia who told her to stay in the apartment.

Churchich and The Officers also emphasize Alicia left her apartment at least four

times during the incident.

A person has been “seized” within the meaning of the Fourth Amendment

only if, in view of all of the circumstances surrounding the encounter, a reasonable

person would have believed he was not free to leave, decline the officers’ requests

or otherw ise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 439 (1991);

United States v. M endenhall, 446 U.S. 544, 554 (1980); see also Terry v. Ohio, 392

U.S. 1, 19 n.16 (1968) (“[N]ot all personal intercourse between policemen and

citizens involves ‘seizures’ of persons. Only when the officer, by means of physical

force or show of authority, has in some way restrained the liberty of a citizen may

we conclude that a ‘seizure’ has occurred.”). In M endenhall, the Court provided

“[e]xamples of circumstances that might indicate a seizure, even where the person

did not attempt to leave . . . .” 538 U.S. at 554. Such circumstances included “the

threatening presence of several officers, the display of a weapon by an officer, some

physical touching of the person of the citizen, or the use of language or tone of

voice indicating that compliance with the officer’s request might be compelled.” Id.

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To these circumstances we have added the “prolonged retention of a person’s

personal effects,” “a request to accompany the officer to the station,” “interaction

in a nonpublic place or a small, enclosed place” and the “absence of other members

of the public.” Jones v. Hunt, 410 F.3d 1221, 1226 (10th Cir. 2005) (quotations

omitted). “None of these factors are dispositive, nor should they be treated as

exclusive . . . .” Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1203 (10th Cir.

2006).

The Reeves’ actions, in particular Alicia’s, clearly contradict their argument

for seizure within the meaning of the Fourth Amendment. As to Ashlee, it is

undisputed she never left or attempted to leave the apartment during the incident.

Nevertheless, Churchich and The Officers’ pointing of their rifles would have

conveyed to a reasonable person in Ashlee’s position, especially considering her

age, that she was not free to leave. Jones, 410 F.3d at 1226 (stating we must look at

whether a reasonable person of plaintiff’s age would have felt free to leave). W ith

regards to Alicia, her conduct at the scene belies her contention that she believed

she was not free to leave the apartment. By her own account, she left the apartment

four times to determine the purpose of the police activity. She did so despite

Churchich and The Officers’ allegedly harsh verbal commands to return to her

apartment and their display and pointing of w eapons. 23

23
The Reeves’ argument that they were seized because Churchich and The
Officers’ actions prevented them from going about their business of getting
dressed and taking a nap is equally unavailing. They rely on Kaupp v. Texas,

-29-
 To the extent a seizure occurred, such seizure was objectively reasonable.

The Fourth Amendment only prohibits unreasonable searches and seizures.

Pennsylvania v. Mim m s, 434 U.S. 106, 108-09 (1977) (“The touchstone of our

analysis under the Fourth Amendment is always the reasonableness in all the

circumstances of the particular governmental invasion of a citizen’s personal

security.”) (quotations omitted). “In judging [the] reasonableness [of a seizure],

courts apply a balancing test that looks to the gravity of the public concerns served

by the seizure, the degree to which the seizure advances the public interest, and the

severity of the interference with individual liberty.” Walker v. City of Orem, 451

F.3d 1139, 1148 (10th Cir. 2006) (quotations omitted). Considering the totality of

the circumstances, we conclude any seizure of the Reeves which occurred during the

attempted apprehension of Diviney was reasonable.

Churchich and The Officers were attempting to apprehend a potentially armed

suspect, whom they had probable cause to arrest for assault. Therefore, it was

reasonable for them to have their weapons displayed and ready for immediate use.

which in turn relied on Bostick and M ichigan v. Chesternut, 486 U.S. 567 (1988),
for the proposition that a seizure of a person “occurs w hen, taking into account all
of the circumstances surrounding the encounter, the police conduct would have
comm unicated to a reasonable person that he was not at liberty to ignore the
police presence and go about his business.” Kaupp v. Texas, 538 U.S. 626, 629
(2003) (quotations omitted). The fact the Reeves may not have been able to
continue with the specific activities they were engaged in prior to Churchich and
The Officers’ presence is irrelevant. The key is that they were free to continue in
activities not mandated by Churchich and The O fficers. In fact, Alicia’s
subsequent activities were directly contrary to Churchich and The O fficers’
requests that she return to her apartment.

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Holland v. Harrington, 268 F.3d 1179, 1192 (10th Cir. 2001) (“The display of

weapons . . . should be predicated on at least a perceived risk of injury or danger to

the officers or others, based upon what the officers know at that time.”); Thom pson

v. City of Lawrence, Kan., 58 F.3d 1511, 1516 (10th Cir. 1995) (not unreasonable

for officers to carry weapons when entering the premises of a suspected felon with a

reputation for possessing firearms). They also reasonably pointed their weapons at

the Reeves. W hile neither Alicia nor Ashlee was the male suspect Churchich and

The Officers w ere looking for, they did not know the nature of their relationship, if

any, to Diviney. Thom pson, 58 F.3d at 1517 (handcuffing and detention of plaintiff

at arrest scene reasonable w here police did not know the nature of her relationship

to arrestee). It is also undisputed that Churchich and The Officers’ pointing of their

weapons at the Reeves w as brief and limited in duration to determining the Reeves’

threat level. Once the perceived threat was extinguished, Churchich and The

Officers did not continue to point their weapons at them. Cf. Holland, 268 F.3d at

1193 (“W here a person has submitted to the officers’ show of force without

resistance, and where an officer has no reasonable cause to believe that person poses

a danger to the officer or to others, it may be excessive and unreasonable to

continue to aim a loaded firearm directly at that person, in contrast to simply

holding the w eapon in a fashion ready for immediate use.”) (emphasis added).

It was also reasonable for Churchich and The Officers to order the Reeves to

return to their apartment. They were faced with a potentially volatile situation and

-31-
the Reeves’ safety may have been at risk. Additionally, Alicia repeatedly interfered

with the task at hand. It was reasonable for Churchich and The Officers to direct

her to return to her apartment. M oreover, based on Alicia’s refusal to comply with

Churchich and The Officers’ demands to return to her apartment, it was reasonable

to increase the harshness and tone of their commands. Indeed, “this case presents

the classic situation in which a plaintiff’s own actions in reaction to a legitimate law

enforcement encounter result in escalating volatility and danger justifying the

subsequent actions of the law enforcement officers involved.” Latta, 118 F.3d at

698; see also M ichigan v. Summers, 452 U.S. 692, 702-03 (1981) (concluding

detention of occupant of place to be searched during execution of search warrant

was reasonable; “[t]he risk of harm to both the police and the occupants is

minimized if the officers routinely exercise unquestioned command of the

situation”).

O f course, w e do not condone Officer Housley calling Alicia a “bitch.” A s

we recognized in Holland, “expletives communicate very little of substance beyond

the officer’s own personal animosity, hostility or belligerence” and “[o]ne can be

firm and direct without being foul and abusive.” 268 F.3d at 1194. Nevertheless,

the use of such single expletive at someone w ho was not heeding an officer’s orders

does not render the officer’s otherwise lawful conduct unreasonable.

2. Clearly Established

Because Churchich and The Officers’ conduct at the scene, both their specific

-32-
actions and overall conduct, did not violate the Reeves’ constitutional rights, no

further inquiry is necessary. The district court correctly concluded they were

entitled to qualified immunity.

B. Supervisor Liability

The Reeves contend the district court erred in dismissing their supervisory

liability claim against Churchich. They allege Churchich’s failure to properly

supervise and inform The Officers was the cause in fact of The Officers’ violations

of their constitutional rights and Churchich should be held responsible for these

violations. Even assuming Churchich was The Officers’ supervisor, 24 because The

Officers did not violate the Reeves’ constitutional rights, no supervisory liability

attaches to Churchich. See Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151

(10th Cir. 2006) (“In order to establish a § 1983 claim against a supervisor for the

unconstitutional acts of his subordinates, a plaintiff must first show the supervisor’s

subordinates violated the constitution.”).

A FFIR ME D.

24
There was conflicting testimony on this point. Churchich testified The
Officers were in charge of how Diviney would be apprehended. Officer Bruno
agreed. Officer W ierman testified Churchich was “definitely” involved “to some
degree” in deciding how The Officers were to proceed in apprehending Diviney
but stated his specific conduct at the scene w as at his ow n discretion. (R. Vol. II
at 318.) Officer M unoz testified the primary responsibility in an agency assist
rests with the agency requesting the assistance. Officer Housley stated Churchich
was “in charge” of The Officers but they would have only followed his
suggestions if they were reasonable. (Id. at 394.) Officer W ierman, on the other
hand, considered O fficer Jones to be in charge of The O fficers.

-33-