TYMKOVICH, Circuit Judge.
Michael Storey brought civil rights claims against police officers after they arrested him at his home during an investigation of a report of a loud domestic argument. The question we consider is whether the officers had probable cause to order Storey to step outside his home and arrest him when he refused to do so, and if exigent circumstances or community safety concerns could support the seizure to facilitate further investigation. We conclude the officers lacked probable cause and exigent circumstances to justify the arrest, and the community caretaking exception to the Fourth Amendment does not apply here.
We therefore REVERSE the district court's grant of summary judgment and remand for further proceedings.
On September 7, 2007, the Los Lunas, New Mexico Police Department received an anonymous call reporting a loud argument at Storey's address. The Department dispatched Officers Taylor and Garcia to investigate.
When Taylor and Garcia arrived at Storey's residence, they heard no argument. They knocked on the front door and Storey answered. Taylor's belt tape reveals the following exchange
Supp. App., Belt Tape.
Taylor then asked Storey about the subject of his argument with his wife. When Storey refused to tell him, he ordered Storey to exit the house:
Id.
At this point, Taylor appears to have pulled Storey outside, handcuffed him, and placed him under arrest.
Id. Garcia transported Storey to the police department, where he was charged with resisting, evading, or obstructing an officer.
When the officers first arrived, Storey's wife, Theresa, was not in the home, but had gone to pick up the couple's children from school. While the officers were questioning Storey, Theresa arrived back home, entering through the attached garage. After the officers placed Storey under arrest, Theresa came out to speak with Taylor and an unidentified officer.
Storey and his wife sued Taylor and other defendants in state court, bringing a number of state and federal claims.
Storey appeals the district court's grant of summary judgment.
"We review a district court's decision to grant summary judgement de novo, applying the same standard as the district court. At this stage, we view the evidence and draw reasonable inferences in the light most favorable to the nonmoving party." Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir.2010).
Taylor argues he is entitled to qualified immunity. "When a defendant asserts qualified immunity at the summary judgment stage, the burden shifts to the plaintiff, who must clear two hurdles to defeat the defendant's motion. The plaintiff must demonstrate, on the facts alleged, that (1) the defendant violated a constitutional right, and (2) the right was clearly established at the time of the alleged unlawful activity." Id.
Id.
With these principles in mind, we consider Storey's claims.
Storey first argues Taylor violated the Fourth Amendment's prohibition on unreasonable seizures because they arrested him without a warrant or exigent circumstances that would justify a warrantless arrest. Further, Storey argues the law was clearly established at the time of his arrest.
Police can enter a home without a warrant only with the voluntary consent of the owner or a third party with apparent authority over the premises, or when exigent circumstances exist. See United States v. Carter, 360 F.3d 1235, 1241 (10th Cir.2004). To enter a home and seize an individual for a routine investigatory purpose, police must have exigent circumstances and probable cause, or a warrant, "no matter whether the seizure is an investigatory stop or an arrest." Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1073 (10th Cir.2010). Probable cause is established where "a substantial probability existed that the suspect committed the crime, requiring something more than a bare suspicion." Kerns v. Bader, 663 F.3d 1173, 1188 (10th Cir.2011) (citation and quotation marks omitted).
In determining whether the risk of personal danger creates exigent circumstances, we use a two-part test: "whether
A warrantless arrest may also be justified if the arresting officer was acting in a "community caretaking" role. "We have recognized that, in fulfilling their duties, police officers may exercise functions — `community caretaking functions' — wholly separate and apart from detecting, investigating, or acquiring evidence of a crime." Lundstrom, 616 F.3d at 1120. These functions may include, for example, restraining an intoxicated individual, see Novitsky v. City of Aurora, 491 F.3d 1244, 1253-54 (10th Cir.2007); impounding a vehicle left on the side of the road, see United States v. Hunnicutt, 135 F.3d 1345, 1351 (10th Cir.1998); or transporting an individual to safety, see United States v. Madrid, 30 F.3d 1269, 1277 (10th Cir. 1994). A detention under the community-caretaking exception:
United States v. Garner, 416 F.3d 1208, 1213 (10th Cir.2005) (citation, alterations, and quotation marks omitted).
Taylor claims he had probable cause to arrest Storey for failure to obey a lawful order — specifically, the order to exit the house.
The problem with Taylor's argument is it relies on the assumption that the order in question was itself lawful. Absent exigent circumstances, Taylor had no basis on which to order Storey out of his house. Clearly, Storey disobeyed Taylor's order to step out of the house. But a sufficiently coercive order requiring an individual to leave his own house counts as a seizure subject to the protections of the Fourth Amendment. Lundstrom, 616 F.3d at 1124; see also Kentucky v. King, ___ U.S. ___, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2010) ("[E]ven if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time."); United States v. Reeves, 524 F.3d 1161, 1167 (10th Cir.2008) ("Circumstances that indicate a seizure include, the threatening presence of several officers, the display of a weapon by an officer, some physical
Thus, the order was not lawful — and Storey's refusal to obey could not justify his arrest — unless the order was itself supported by exigent circumstances.
Even if we assume exigent circumstances would have been sufficient for Taylor to order Storey to "step out of the house," the facts here, viewed in the light most favorable to Storey, demonstrate a lack of exigent circumstances.
A report of a domestic argument — standing alone — does not demonstrate exigent circumstances per se. United States v. Davis, 290 F.3d 1239, 1244 (10th Cir.2002). Thus, officers responding to a report of a domestic dispute must point to something beyond the mere fact of an argument to demonstrate an "objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others." Najar, 451 F.3d at 718. Either additional depth and detail in the report, or additional facts learned in the course of the investigation, are required to support the exigency. See United States v. Martinez, 643 F.3d 1292, 1297 (10th Cir.2011).
Here, the record reveals the following facts leading up to Storey's arrest. First, Los Lunas police received a report of a domestic dispute — specifically, a loud argument — at Storey's residence. Second, by the time police arrived, they could not hear or otherwise detect an ongoing altercation; the argument, apparently, had ended. Third, there were no other visual or audible indications of past or present violence. Fourth, Storey answered the door and admitted he had an argument with his wife, but claimed the argument was now over and she had left. Fifth, while the officers were talking with Storey, they observed Storey's wife, Theresa, returning to the house via the garage. Nothing the officers observed about her suggested a risk to her safety. The question is whether any of these circumstances would justify a belief that there was an immediate need to protect the safety of others.
We examined a similar factual scenario in Lundstrom v. Romero, 616 F.3d 1108 (10th Cir.2010). There, an anonymous caller reported hearing the sounds of a woman screaming and a toddler being beaten in the plaintiff's backyard. The police department dispatched an officer to conduct a child welfare check. When the officer arrived, she heard "a high-pitched voice" but no other sounds that might indicate an ongoing altercation. Id. at 1116. The plaintiff answered the door, but after learning why the officer was there, he informed her that there were no children present and shut the door. The officer requested backup, and more officers arrived. In the meantime, the plaintiff called 911, apparently because he believed the officer was an impersonator. Over the phone, another officer advised the plaintiff that the officers surrounding his house were authentic, and ordered him to go
We found the plaintiff was unlawfully seized when he complied with the order to exit his house. We found the officers had no probable cause because "nothing indicated he had done anything wrong and he did not pose a threat to the officers." Id. at 1124. We also found no exigent circumstances that would justify the seizure because nothing known to the officers (apart from the anonymous caller) indicated the presence of a child in the house. Significantly, we noted that the plaintiff denied the presence of any children; the officers did not observe any children; and another occupant of the house, who was detained outside, likewise claimed there were no children in the house. We also found the law on this point was clearly established, making qualified immunity inapplicable.
Here, as in Lundstrom, police responded to an anonymous 911 call reporting an altercation, though in the present case only loud arguing was reported. In both cases, when police arrived, there were no signs of an ongoing altercation, and the information available to the officers did not indicate violence was imminent. Taylor claims the fact that Storey's wife returned home while they were questioning Storey could have reignited a volatile situation. We do not find this particularly probative, however, given the presence of police officers and the absence of facts supporting an escalating situation. At best, this fact was "neutral" and did not significantly alter the exigent-circumstances equation since Taylor did not even ask Storey's wife to come to the door before he arrested Storey. Martinez, 643 F.3d at 1299.
Taylor points to several cases that he argues justify a finding of exigent circumstances. All of those cases, however, involved some significant facts in addition to a report of a domestic dispute.
In summary, all of these cases involved credible evidence known to the officers of physical abuse or additional corroborating circumstances that increased the potential for violence. That is not the case here.
In addition to these cases, two recent Supreme Court cases illustrate the contours of exigent circumstances in similar situations. In Ryburn v. Huff, ___ U.S. ___, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (per curiam), officers were investigating a high school student suspected of planning a school shooting. When officers arrived at the student's home, they detected movement within. Nonetheless, no one answered the phone in the house. The suspect's mother then answered her cell phone and eventually opened the door to speak with the officers. When an officer asked the suspect's mother whether there were guns in the house, she "responded by immediately turning around and running into the house." Id. at 989. The officers followed her into the home without a warrant. The Court found that based on her demeanor, the serious nature of the threats, and her evasive actions the officers could have reasonably perceived an imminent threat of violence. Id. at 990. But neither an ongoing investigation of a serious crime, nor a sudden, unexplained movement in response to a question about weapons is present here.
In the second case, Brigham City v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), police were investigating a loud party at a residence. When they arrived, they "heard shouting from inside," and approached the house to investigate further. Id. at 401, 126 S.Ct. 1943. Through the windows, they witnessed an ongoing fight involving several participants, and entered the house. Id. The Supreme Court found the warrantless entry was lawful because "the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning." Id. at 406, 126 S.Ct. 1943. Here, however, there were no observable facts that would support an objectively reasonable belief that violence was ongoing or imminent when the officers arrived.
In sum, a report of a loud argument — without more — that has ceased by the time an officer arrives, although relevant to the exigent circumstances inquiry, does not alone create exigent circumstances to justify a warrantless arrest. And, unlike in the cases cited by Taylor, there are no additional facts that would significantly increase the likelihood of violence. Accordingly, viewing the facts in the light most favorable to Storey, we find Storey's arrest was not justified by exigent circumstances.
Taylor also argues he lawfully arrested Storey in the performance of his community-caretaking duties. This argument, however, fails for the same reason as Taylor's exigent-circumstances argument: the facts do not show a likelihood of violence such that Taylor's actions were necessary to protect the safety of Storey, his wife, the officers, or others. See Lundstrom, 616 F.3d at 1124; cf. Brigham City, 547 U.S. at 406, 126 S.Ct. 1943. Thus, there were no "specific and articulable facts" to justify the intrusion on Storey's liberty. Garner, 416 F.3d at 1213.
We are not unsympathetic to officers in Taylor's position, who in the performance of their duties must often make split-second
Finally, Taylor argues that he is shielded by qualified immunity because, even if the arrest violated Storey's constitutional rights, the law on this point was not clearly-established.
We disagree. In Lundstrom, we found the legal principles underlying the plaintiff's Fourth Amendment rights to be clearly established. See Lundstrom, 616 F.3d at 1125. Here, "[i]t was similarly established that community caretaking detentions must be based on specific articulable facts warranting an intrusion into an individual's liberty. It was also unambiguous that a police officer must have probable cause to arrest an individual." Id. And it was also clear that exigent circumstances were required. Armijo, 601 F.3d at 1070. Accordingly, Taylor is not entitled to qualified immunity.
Storey next challenges the district court's grant of summary judgment on his retaliatory arrest claim. He argues a jury could find he was arrested in retaliation for asserting his constitutional rights, based on the verbal exchange captured by Taylor's belt tape.
The court below found Storey's arrest was lawful. It also found that when an arrest is lawful, "then there is no but-for causation for a related tort requiring a retaliatory motive." Aplt. Errata Sheet at 6. Thus, the court applied qualified immunity and granted summary judgment. This result was consistent with a recent Supreme Court opinion holding that, in the absence of but-for causation, the arresting officer is entitled to qualified immunity from a retaliatory-arrest claim. Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 2096, 182 L.Ed.2d 985 (2012).
But, as discussed above, Storey's arrest was unlawful because Taylor lacked probable cause. Thus, the question becomes whether, in light of the evidence, a reasonable jury could conclude that Taylor's retaliatory motive was a but-for cause of Storey's arrest. Since the district court did not answer this question, we remand this issue for further consideration.
For the reasons stated above, we REVERSE the district court's grant of summary judgment and REMAND for further proceedings.
