FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           April 19, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 TIMOTHY JACK CRALL,

       Plaintiff - Appellant,

 v.                                                          No. 18-1313
                                                 (D.C. No. 1:17-CV-02317-REB-STV)
 GREG WILSON, Elbert County Deputy                            (D. Colo.)
 Sheriff, in his individual capacity,

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BACHARACH, and McHUGH, Circuit Judges.
                  _________________________________

      Timothy Crall appeals the district court’s dismissal of his 42 U.S.C. § 1983

claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                           I

      Crall brought suit against Elbert County Deputy Sheriff Greg Wilson for Fourth

Amendment claims related to a search and seizure at Crall’s home on January 24, 2017.1

At approximately 10:00 p.m. on that date, Wilson and several other deputies arrived


      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
         Because Crall’s claims were dismissed under Fed. R. Civ. P. 12(b)(6), all
facts are taken from his amended complaint. Brown v. Montoya, 

, 1162
(10th Cir. 2011).
at a property in Elbert County with the intention of arresting Kent Thompson. They

possessed a valid arrest warrant for Thompson related to a non-violent drug crime.

       The property consisted of a main house, owned by Scott Guynn, and a fifth

wheel trailer in the back yard. Deputies spoke with Guynn, who told them that Crall

owned and resided in the trailer and that both Crall and Thompson were inside.

According to the amended complaint, “the deputies had information indicating

that . . . Thompson was temporarily staying at the . . . address, but had no reason to

believe he lived there.” And “[t]he deputies on scene were familiar with . . .

Thompson, from prior contacts, and knew or should have known that he did not live

in the 5th wheel trailer.”

       Wilson and the other deputies decided to search Crall’s trailer in an effort to

locate Thompson and execute the arrest warrant. They found the door of the trailer

propped open, with a blanket covering the doorframe. After entering the trailer with

a police dog, they discovered two additional blankets dividing the trailer into three

areas: a kitchen/living room, a hallway, and a bedroom/television area. From the

hallway, deputies could see into the bedroom through a gap at the base of the blanket.

They observed a space heater and a pair of work boots at the foot of a bed. They

could also hear that a television was on.

       Crall concedes the deputies announced their presence. However, he alleges he

did not hear their announcement due to sounds coming from the space heater and

television, as well as his level of intoxication. Wilson then “stated loudly that he

would send the dog into the bedroom to bite” the occupant if the occupant did not

                                            2
come into the hallway. When Crall did not emerge, Wilson sent the dog into the

bedroom. It bit Crall’s knee, and Wilson yanked the dog’s leash to pull Crall out of

bed. When Crall attempted to brace himself, the dog also bit his right arm, although

there is no allegation any deputy ordered the dog to do so. Another deputy

handcuffed Crall and he was taken into custody. After Crall was removed from the

trailer, deputies located and arrested Thompson, who was also inside.

      Crall filed suit against Wilson advancing Fourth Amendment unreasonable

search, unreasonable seizure, and excessive force claims under § 1983. Wilson

moved to dismiss under Fed. R. Civ. P. 12(b)(6) based on a qualified immunity

defense. A magistrate judge recommended granting Wilson’s motion. After

considering Crall’s objections, the district court adopted the magistrate judge’s

recommendation and dismissed Crall’s claims. Crall now appeals.

                                           II

      We review de novo a district court’s qualified immunity ruling. Maestas v.

Lujan, 

, 1007 (10th Cir. 2003). At the motion to dismiss stage, “all

well-pleaded factual allegations in the complaint are accepted as true and viewed in

the light most favorable to the nonmoving party.” 

(quotation and alteration omitted). In assessing a qualified immunity defense at this

stage, we must determine whether the plaintiff pled facts indicating: (1) the

defendant violated a statutory or constitutional right and (2) that right was “clearly

established” at the time of the challenged conduct. Ashcroft v. al-Kidd, 

, 735 (2011).

                                            3
      In resolving a qualified immunity dispute, courts are “permitted to exercise

their sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances of the particular case

at hand.” Pearson v. Callahan, 

, 236 (2009). We conclude it

appropriate to proceed directly to the second prong in this case.

      “The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Thomas v. Durastanti, 

, 669

(10th Cir. 2010) (quotation omitted). “Ordinarily this standard requires either that

there is a Supreme Court or Tenth Circuit decision on point, or that the clearly

established weight of authority from other courts has found the law to be as the

plaintiff maintains.” Patel v. Hall, 

, 980 (10th Cir. 2017) (quotation and

alteration omitted). “In the Fourth Amendment context,” whether a right is clearly

established “depends very much on the facts of each case, and the precedents must

squarely govern the present case.” Aldaba v. Pickens, 

, 877 (10th Cir.

2016) (quotations omitted). However, “in an obvious case,” more general “standards

can clearly establish the answer, even without a body of relevant case law.”

Brosseau v. Haugen, 

, 199 (2004) (quotations omitted).

                                           A

      In his first claim, Crall alleges that Wilson’s entrance into the trailer without a

search warrant, with the intent of executing an arrest warrant against Thompson, was

an unreasonable search. He argues that the law was clearly established that police

                                           4
may not search for the subject of an arrest warrant in the home of a third party absent

a search warrant or exigent circumstances. We disagree.

      It is not clearly established that entering a third party’s residence to execute a

valid arrest warrant against an individual “temporarily staying” in the residence

violates the third party’s Fourth Amendment rights. It is clear that if the subject of

an arrest warrant is merely a guest in a home, law enforcement may not enter without

a search warrant or exigent circumstances. Steagald v. United States, 

,

215-216 (1981). However, if the subject of the arrest warrant lives in the residence,

law enforcement may enter to execute a valid arrest warrant without a search warrant

or exigent circumstances. Payton v. New York, 

, 603 (1980) (“[F]or

Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly

carries with it the limited authority to enter a dwelling in which the suspect lives

when there is reason to believe the suspect is within.”).

      The facts alleged by Crall fall somewhere between these poles. As our court

has previously explained, “Payton and Steagald cannot be understood to divide the

world into residences belonging solely to the suspect on the one hand, and third

parties on the other.” Valdez v. McPheters, 

, 1225 (10th Cir. 1999).

“In the real world, people do not live in individual, separate, hermetically-sealed

residences,” but rather “live with other people [and] move from one residence to

another.” 

subject of an arrest warrant may be considered to

reside somewhere for Fourth Amendment purposes “so long as the suspect possesses



                                            5
common authority over, or some other significant relationship to, the residence.” 

       Crall has not come forward with case law clearly establishing that Thompson

should have been treated as a guest rather than a resident. He does not provide any

Supreme Court or Tenth Circuit authority addressing entry into an individual’s

residence where the subject of a valid arrest warrant is also temporarily staying. And

his conclusory allegation that police knew or should have known Thompson did not

live in the trailer does not overcome the fact that his amended complaint alleges

Wilson knew Thompson was “temporarily staying” in the trailer. See Robertson v.

Las Animas Cty. Sheriff’s Dep’t, 

, 1193 (10th Cir. 2007) (“Conclusory

allegations are not sufficient to state a constitutional violation.”).

                                             B

       Crall’s second claim alleges an unreasonable seizure. He argues that Wilson

ordered him to exit the bedroom without probable cause or reasonable suspicion to

believe he had committed a crime. Crall further contends Wilson’s command to the

police dog was unreasonable because Crall had no obligation to exit the bedroom.

       As with his first claim, Crall fails to identify any authority clearly establishing

these propositions. He correctly states that “a sufficiently coercive order requiring an

individual to leave his own house counts as a seizure subject to the protections of the

Fourth Amendment.” Storey v. Taylor, 

, 993 (10th Cir. 2012). But

even assuming Wilson’s order for Crall to exit his bedroom constituted a seizure,



                                             6
Crall cites no Supreme Court or Tenth Circuit case establishing that such a seizure

violates the Fourth Amendment.

      As 

, Wilson entered Crall’s home to execute a valid arrest

warrant, and that entry was not a clearly established Fourth Amendment violation.

Law enforcement may temporarily detain individuals, including third parties, in the

course of executing a valid arrest warrant in certain circumstances. See Maryland v.

Buie, 

, 336-37 (1990) (law enforcement may conduct a “protective

sweep” of a residence without a separate search warrant and without probable cause

or reasonable suspicion if officers have a reasonable belief the protective sweep is

necessary for safety). We have interpreted Buie’s authorization of “protective

sweeps” to permit “protective detentions.” United States v. Maddox, 

,

1362 (10th Cir. 2004). Based on the facts alleged, it would not have been clear to a

reasonable officer that a protective detention of Crall was unlawful.

                                            C

      Lastly, Crall advances an excessive force claim based on Wilson’s use of his

police dog. “[C]laims that law enforcement officers have used excessive force . . .

should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”

Graham v. Connor, 

, 395 (1989). Courts should consider “the severity

of the crime at issue, whether the suspect poses an immediate threat to the safety of

the officers or others, and whether he is actively resisting arrest or attempting to

evade arrest by flight.” 

                                            7
      Crall fails to identify any precedent considering a similar fact pattern. Instead,

he relies exclusively on the Graham factors, arguing this is such an “obvious case”

that the general standard clearly establishes that Wilson’s conduct was unlawful.

(quotation omitted). We disagree. “[A]n officer’s

violation of the Graham reasonableness test is a violation of clearly established law if

there are no substantial grounds for a reasonable officer to conclude that there was a

legitimate justification for acting as she did.” Casey v. City of Federal Heights, 

, 1286 (10th Cir. 2007) (quotation omitted).

      Wilson could have reasonably believed that use of a police dog was

permissible. Our court has held in other circumstances that the use of police dogs

does not constitute excessive force. See, e.g., Marquez v. City of Albuquerque, 

, 1221 (10th Cir. 2005) (jury “could rationally reach the conclusion that

[law enforcement] . . . acted reasonably when, after warning [plaintiff] to halt, he

ordered his police service dog to apprehend [plaintiff]”). And in this case, officers

announced their presence in the home and Wilson loudly announced that he would

deploy the dog if the occupant of the bedroom did not emerge. Officers could not see

what the individual in the bedroom was doing, but had reason to think a person was

in the room refusing to exit. We therefore reject Crall’s argument that this presents

an obvious case of excessive force.




                                           8
            III

AFFIRMED.


             Entered for the Court


             Carlos F. Lucero
             Circuit Judge




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