Filed united States Court of Appeals Tenth Circuit June 27, 2006



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FILED
United States Court of Appeals
Tenth Circuit

June 27, 2006

Elisabeth A. Shumaker


Clerk of Court

PUBLISH


UNITED STATES COURT OF APPEALS
TENTH CIRCUIT


DAVID WALKER, for himself and as next best friend for Cadin Wayne Walker, McKaela Tandi Walker and Andrew Walker; DEBBIE WALKER, for herself, as Personal Representative of the Estate of David Walker, as next best friend for Cadin Wayne Walker, McKaela Tandi Walker and Andrew Walker; PATTI WALKER STRATTON; CHAD STRATTON; TYREE LAMPH, individually, and for and on behalf of Dakota (“Cody”) Lamph; AMY MELISSA LAMPH, individually, and for and on behalf of Dakota (“Cody”) Lamph,
Plaintiffs Appellees,
v.
CITY OF OREM, a Utah municipality; HAROLD PETERSON, Officer;

CITY OF PLEASANT GROVE, a Utah municipality; JOHN CLAYTON,

Officer; B. J. ROBINSON, Officer; GORDON SMITH, officer of the Department of Public Safety, Orem City, individually, UTAH COUNTY; DAVID BATEMAN, Sheriff of Utah County, in his official and individual capacity; DARIN DURFEY, Detective; PATTY JOHNSTON, Detective; TOM HODGSON, Detective,
Defendants,
and
JERRY MONSON, Sgt.; MERET LANCE MCDANIEL, Deputy, all of the Utah County Sheriff’s Department, in their individual capacities,
Defendants Appellants.

DAVID WALKER, for himself and as next best friend for Cadin Wayne Walker, McKaela Tandi Walker and Andrew Walker; DEBBIE WALKER, for herself, as Personal Representative of the Estate of David Walker, as next best friend for Cadin Wayne Walker, McKaela Tandi Walker and Andrew Walker; PATTI WALKER STRATTON; CHAD STRATTON; TYREE LAMPH, individually, and for and on behalf of Dakota (“Cody”) Lamph; AMY MELISSA LAMPH, individually, and for and on behalf of Dakota (“Cody”) Lamph,


Plaintiffs Appellees,
v.
CITY OF OREM, a Utah municipality; CITY OF PLEASANT GROVE, a

Utah municipality; JOHN CLAYTON, Officer; B. J. ROBINSON, Officer; UTAH COUNTY; DAVID BATEMAN, Sheriff of Utah County, in his official and individual capacity; JERRY MONSON, Sgt.; DARIN DURFEY, Detective; PATTY JOHNSTON, Detective; TOM

HODGSON, Detective; MERET LANCE MCDANIEL, Deputy, all of the Utah County Sheriff’s Department, in their individual capacities; GORDON SMITH, officer of the Department of Public Safety, Orem City, individually,
Defendants,
and
HAROLD PETERSON, Officer,
Defendant Appellant.

DEBBIE WALKER, as Personal Representative of the Estate of

David Walker, and as next best friend for Cadin Wayne Walker, McKaela Tandi Walker and Andrew Walker; DAVID B. WALKER, for himself and as next best friend for Cadin Wayne Walker, McKaela Tandi Walker and Andrew Walker; TYREE LAMPH; AMY MELISSA LAMPH; PATTI STRATTON WALKER; CHAD STRATTON,
Plaintiffs Appellees,
v.
OREM CITY, a Utah municipality; HAROLD PETERSON, Officer;

PLEASANT GROVE CITY, a Utah municipality; B. J. ROBINSON,

Officer; RICHARD CASE; UTAH COUNTY; DAVID BATEMAN; JERRY MONSON; MERET LANCE McDANIEL; GORDON SMITH; (FNU) GILBERT,
Defendants,
and
JOHN CLAYTON, Officer,
Defendant Appellant.

DEBBIE WALKER, as personal representative of the Estate of

David Walker, and as next best friend for Cadin Wayne Walker, McKaela Tandi Walker and Andrew Walker; DAVID WALKER, SR., for himself and as next best friend for Cadin Wayne Walker, McKaela Tandi Walker and Andrew Walker; TYREE

LAMPH, and AMY MELISSA LAMPH, individually and on behalf of Dakota (“Cody”) Lamph; PATTI STRATTON WALKER; CHAD STRATTON,


Plaintiffs Appellants,
v.
OREM CITY, a Utah municipality; HAROLD PETERSON, Officer;

PLEASANT GROVE CITY, a Utah municipality; JOHN CLAYTON, Officer; B. J. ROBINSON, Officer; RICHARD CASE; DAVID BATEMAN, Sheriff of Utah County, in his official and individual capacity; DARIN DURFEY; GORDON SMITH; (FNU) GILBERT,


Defendants,
and
UTAH COUNTY; JERRY MONSON; MERET LANCE McDANIEL,
Defendants Appellees.


No. 04-4140

(D.C. No. 2:02-CV-253-TS)

(D. Utah)

No. 05-4016

(D.C. No. 2:02-CV-253-TS)

(D. Utah)

No. 05-4025

(D.C. No. 2:02-CV-253-TS)

(D. Utah)

No. 05-4038

(D.C. No. 2:02-CV-253-TS)

(D. Utah)




APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. No. 2:02-CV-253-TS)

Submitted on the briefs:*


Jesse C. Trentadue, Michael W. Homer, Suitter Axland, Salt Lake City, Utah for Defendants-Appellants in 04-4140, for Defendants-Appellees in 05-4038.
Margaret D. Plane, American Civil Liberties Foundation, Inc., Salt Lake City, Utah for Plaintiffs-Appellees in 04-4140, for Plaintiffs-Appellants in 05-4038.
Ralph E. Chamness, Lauren I. Scholnick, Erika Birch, Strindberg, Scholnick & Chamness, LLC, Salt Lake City, Utah for Plaintiffs-Appellees in 04-4140, 05 4016, 05-4025, and for Plaintiffs-Appellants in 05-4038.
Andrew M. Morse, Heather S. White, Snow Christensen & Martineau, Salt Lake City, Utah for Defendant-Appellant in 05-4016.
Peter Stirba, Gary R. Guelker, Stirba & Associates, Salt Lake City, Utah for Defendant-Appellant in 05-4025.

Before HARTZ, EBEL, and McCONNELL, Circuit Judges.




EBEL, Circuit Judge.

We have consolidated the present appeals for purposes of disposition. These appeals arise out of a police shooting in a rural area of American Fork, Utah, and the subsequent detention of witnesses to the shooting. The plaintiffs include Debbie Walker, mother and personal representative of the estate of David Walker who died in the shooting, and various other relatives of David Walker who have asserted claims arising out of the shooting and the subsequent detention.

In Case No. 04-4140, Officers Jerry Monson and Lance McDaniel of the Utah County Sheriff’s Office appeal from the district court’s order denying their motion to dismiss plaintiffs’ complaint based on qualified immunity. Case No. 05-4038 is an appeal by the plaintiffs, who challenge the district court’s grant of summary judgment based on qualified immunity to Officers Monson and McDaniel, and its grant of summary judgment to Utah County, on claims arising out of their detention subsequent to the shooting. Cases 05 4016 and 05-4025 are brought, respectively, by Orem City Sergeant Harold Peterson and Pleasant Grove Officer John Clayton, the officers who shot and killed David Walker. They challenge the district court’s denial of their motions for summary judgment based on qualified immunity.

We reverse the district court’s denial of qualified immunity to Officers Monson and McDaniel in Case No. 04-4140, and remand for a grant of qualified immunity to those officers. In Case No. 05-4038, we vacate the district court’s grant of summary judgment to officers Monson and McDaniel for lack of jurisdiction, but affirm the grant of summary judgment in favor of Utah County. We dismiss cases 05-4016 and 05-4025 in part for lack of appellate jurisdiction, and affirm in part.

Finally, we note that plaintiffs sued a number of defendants associated with the Utah County Sheriff’s Office, including its sheriff, David Bateman, who was named in both his individual and official capacities. In a stipulated order dated July 6, 2004, all Utah County defendants except for Utah County and Officers Monson and McDaniel, were dismissed without prejudice.1 Aplt. App., No. 04 4140, at 258-59. As we read this order, Sheriff Bateman was dismissed in both his individual and official capacities. Although the district court’s subsequent summary judgment order purported to grant summary judgment in favor of the “Utah County Sheriff’s Office,” we understand its order to refer to defendant Utah County. Accordingly, in this opinion, we refer to the municipal entity to which summary judgment was granted, from which the plaintiffs now appeal, as “Utah County.”

FACTS

While all of the appeals arise out of the same basic factual nexus, the significance of the operative facts differs according to the appellate context of each appeal.2 We will therefore begin with a recitation of the basic facts contained in plaintiffs’ district court complaints. Further facts developed during the summary judgment proceedings will then be presented in their appropriate context, as part of the analysis of particular claims.3

Two complaints were filed in this action, No. 2:02CV-0253ST (the “shooting complaint”), naming the Cities of Orem, Pleasant Grove, and Lehi, and Officers Peterson, Clayton, Robinson, Smith, Terry and Munson, and No. 2:02CV-1427BSJ (the “detention complaint”), naming Utah County, various Utah County Sheriff’s Department employees, Gordon Smith, and the City of Orem. The complaints were consolidated on plaintiffs’ motion.

The Shooting Complaint

Plaintiffs allege that on December 28, 1998, David Walker took his sister Patti Walker Stratton’s Subaru from the home of his parents David Walker, Sr. and Debbie Walker. After switching the license plates on the vehicle, he continued driving it. Later that day, he called his mother, Debbie Walker, and indicated that he was suicidal. In order to obtain assistance in locating her son from the Utah County Sheriff’s Office, Debbie Walker reported the vehicle as stolen.

The next day, David again called his mother at home and again reported he was suicidal. Law enforcement assisted family members in tracing the call to a gas station in Orem, Utah. Orem officers responded to the identified location but David Walker eluded them.

Officers Peterson of Orem and Clayton of Pleasant Grove thereafter became involved in pursuing David through several municipal and Utah County jurisdictions. Initially, the Orem police dispatch reported that David was a threat to his family and others; this, however, was later corrected to report that he was merely a danger to himself. The Utah County Sheriff’s office channel reported that David was unarmed and was going to his parents’ home.

David arrived in the driveway of the rural Walker residence, followed by Officers Peterson and Clayton.4 Plaintiffs allege that this parking area was “well lit by a full moon, a large barn outdoor light,” a porch light, and Christmas lights. Aplt. App., No. 04-4140, at 51. They also assert that David left his brights on when he exited the Subaru and that he stood a short distance in front of the vehicle, holding a small, two-inch blade knife against his wrist. Additional illumination was provided at the scene by the red and blue warning lights on Peterson’s vehicle, and the headlights from both Clayton and Peterson’s vehicles.

Plaintiffs assert that both officers had turned off their sirens when they came down the driveway. While Peterson “shouted instructions to Clayton that could be heard in the night’s silence” he allegedly did not provide any warning or instructions to David. Id. at 52. Peterson drew his .45 caliber firearm, told Orem dispatch he was exiting his vehicle, and shot David Walker twice from a distance of twenty-eight feet. Plaintiffs allege that Clayton then shot David Walker two more times with his .40 caliber weapon while David was lying on the ground, from a distance of approximately twenty to twenty-five feet.

After the shooting, David’s mother Debbie Walker and his sister Patti Walker Stratton were standing on the front porch of the Walker home. Officers on the scene would not permit them to go to David. Officer B.J. Robinson ordered them to get down and simultaneously grabbed Debbie Walker and pulled her down the concrete stairs outside the home, seriously injuring her shoulder. He then pulled Patti Walker Stratton down on top of Debbie Walker. Robinson and Clayton then thrust their weapons into Debbie and Patti’s faces, terrifying them.

The Detention Complaint

In addition to the factual allegations recited in the shooting complaint, plaintiffs included the following allegations in their complaint against Utah County, officers of the Utah County Sheriff’s Department (including officers Monson and McDaniel), Gordon Smith of the Orem City Department of Public Safety, and the City of Orem. After the shooting of David Walker, officers of the Utah County Sheriff’s Department and Gordon Smith, who were armed and in uniform, required plaintiffs to remain in their home for questioning. Debbie Walker and Patti Walker Stratton had weapons pointed at their heads and were ordered into the Walker home at gunpoint. Plaintiff Tyree Lamph, David Walker’s brother-in-law, was detained in the back of a Utah County Sheriff’s Department vehicle and then detained in the Walker residence. Plaintiffs did not consent to this detention, which lasted approximately one and one-half hours and prevented them from being with David Walker before he died.



ANALYSIS

Case No. 04-4140

In Case No. 04-4140, the first appeal filed in this case, Officers Jerry Monson and Lance McDaniel of the Utah County Sheriff’s Department appeal the district court’s denial of their motion to dismiss, in which they asserted qualified immunity for their role in detaining certain family members of David Walker after the fatal shooting. “We review de novo a district court’s ruling on qualified immunity.” Jones v. Hunt, 410 F.3d 1221, 1225 (10th Cir. 2005). “Our threshold inquiry in the qualified immunity analysis is whether, taking [plaintiffs’] allegations as true, [officers Monson and McDaniel] violated [their] Fourth Amendment right to be free from unreasonable seizures.” Id. “If we conclude that [plaintiffs have] alleged constitutionally impermissible conduct, [the officers] ‘may nevertheless be shielded from liability for civil damages if [their] actions did not violate clearly established . . . constitutional rights of which a reasonable person would have known.’” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).
1. Threshold issue

The procedural posture of this appeal is complicated by the fact that the district court denied qualified immunity to Officers Monson and McDaniel on their motion to dismiss, but ultimately granted that relief in response to their motion for summary judgment. It denied the officers’ motion to dismiss “because the right these Defendants are alleged to have violated was clearly established at the time of the incident in question.” Aplt. App., No. 04-4140, at 250. After Monson and McDaniel renewed their qualified immunity argument on summary judgment, the district court correctly noted the plaintiffs’ argument that it lacked jurisdiction to proceed because the officers had filed an interlocutory appeal. The district court concluded, however, that since its prior order and the officers’ appeal concerned only whether the right allegedly violated was clearly established, it retained jurisdiction to determine whether the officers had violated the plaintiffs’ constitutional rights. It then determined, for summary judgment purposes, that they had not.

Because of this unusual disposition, we encounter jurisdictional difficulties in reaching either of the district court’s orders. The summary judgment ruling granting qualified immunity in favor of the officers may have mooted the denial of their motion to dismiss. On the other hand, once officers Monson and McDaniel took an appeal from the order denying their motion to dismiss based on qualified immunity, the district court may have lost jurisdiction to take further substantive action relevant to them in the case. Stewart v. Donges, 915 F.2d 572, 576 (10th Cir. 1990) (“[A]n interlocutory appeal from an order refusing to dismiss on . . . qualified immunity grounds . . . divests the district court of jurisdiction to proceed with any part of the action against an appealing defendant.”).

The issue is somewhat clouded by language in Stewart indicating that the reason for the divestiture of jurisdiction is to protect the right of a defendant asserting qualified immunity to avoid further proceedings pending resolution of the appeal. See id. at 575-76. That rationale, strictly speaking, is not served here by divesting the district court of jurisdiction to enter summary judgment in favor of Officers Monson and McDaniel. It was Monson and McDaniel, after all, who further invoked the jurisdiction of the district court in this case by filing a motion for summary judgment and by obtaining a favorable disposition on that motion while their appeal to this court was pending. The decision to proceed with their motion for summary judgment paid off for them: the district court’s order of summary judgment in their favor furthered, rather than hindered, their interest in avoiding a trial on the merits of plaintiffs’ claims.5

Did, then, the district court retain the power after the appeal was filed to rule in favor of the officers on qualified immunity? We think not. The filing of the notice of appeal was an event of jurisdictional significance, which divested the district court from granting further relief concerning the issues on appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). We see no reason to depart from this rule, even where the relief granted favored the appealing party.6

This does not mean that a party, having filed a notice of appeal from the denial of a motion to dismiss on the basis of qualified immunity, has no option but to await the outcome of the appeal if facts subsequently emerge that it believes demonstrate its entitlement to summary judgment. An appealing party in that situation may seek to abate the appeal while requesting that we remand to the district court for consideration of a summary judgment motion. The officers have filed no such motions in this case, however, and our decision in their favor on their appeal from the motion to dismiss makes it unnecessary to consider whether we could or should grant such an abatement and remand nunc pro tunc.

It follows that the portion of the district court’s order granting summary judgment to officers Monson and McDaniel, challenged in Case No. 05-4038, must be vacated for lack of jurisdiction. We proceed to consider the officers’ appeal from the denial of their motion to dismiss.

2. Qualified immunity analysis

We now proceed to conduct the required de novo review of the district court’s denial of the officers’ motion to dismiss. Our review leads us to reach a disposition contrary to that of the district court. We conclude that taking the allegations of plaintiffs’ complaint as true, they adequately alleged a violation by officers Monson and McDaniel of their Fourth Amendment right to be free from unreasonable seizures. We further conclude, however, that the contours of this right were not sufficiently established that a reasonable officer would have known that the detention was unlawful. We therefore reverse the denial of qualified immunity in favor of officers Monson and McDaniel, and remand with instructions to dismiss plaintiffs’ complaint against them.



a. Fourth Amendment violation

As noted, our threshold inquiry concerns whether, taking the allegations of plaintiffs’ complaint as true, the officers violated the detained plaintiffs’ Fourth Amendment rights. Plaintiffs’ complaint is somewhat vague concerning the specific, personal participation of officers Monson and McDaniel in detaining plaintiffs. Plaintiffs do allege, however, that “all Defendants were armed, in uniform, and required the Plaintiffs to remain in the residence . . . for approximately one and one-half hours.” Aplt. App., No. 04-4140, at 100. They further allege that plaintiff Tyree Lamph was “unreasonably detained in the back of a [Utah County Sheriff’s Office] vehicle and then detained in the Walker residence.” Id.7

Plaintiffs do not assert that Monson and McDaniel arrested them. Nor were they detained as suspects of a crime. The Fourth Amendment applies to their detention, however, because:

It is quite plain that the Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to the station house and prosecution for crime – “arrests” in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person.


Terry v. Ohio, 392 U.S. 1, 16 (1968).
The question is whether the “seizure” involved was reasonable for Fourth Amendment purposes. We note, at the outset, that defendants did not have a “reasonable suspicion” that plaintiffs were involved with any criminal wrongdoing, and therefore had no right to subject them to an investigative detention. See Cortez v. McCauley, 438 F.3d 980, 991-92 (10th Cir. 2006). Instead, they have advanced two basic rationales for the seizure involved here. First, the seizure was reasonable as a means of obtaining information from, or interviewing, potential witnesses to a crime. Second, the seizure was reasonable as a means of securing a crime scene. We will consider each of these rationales in turn.

The detention of a potential witness to a crime must satisfy the Fourth Amendment’s “reasonableness” requirement. Illinois v. Lidster, 540 U.S. 419, 426-27 (2004). In judging reasonableness, 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.” Brown v. Texas, 443 U.S. 47, 51 (1979).

As a general matter “[t]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, [however,] the person approached may not be detained or frisked but may refuse to cooperate and go on his way.” Terry, 392 U.S. at 34 (White, J., concurring). What little authority exists on this question suggests that police have less authority to detain those who have witnessed a crime for investigatory purposes than to detain criminal suspects. 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 9.2(a), at 289 (4th ed. 2004). Accordingly, some courts have prohibited the involuntary detention of witnesses to a crime. United States v. Ward, 488 F.2d 162, 169-70 (9th Cir. 1973) (en banc); United States ex rel. Hampton v. Fews, 187 F. Supp. 2d 981, 988-90 (N.D. Ill.), rev’d on other grounds, 296 F.3d 560 (7th Cir. 2002); Perkins v. Click, 148 F. Supp. 2d 1177, 1184 (D.N.M. 2001); Orozco v. County of Yolo, 814 F. Supp. 885, 893 (E.D. Cal. 1993).

A recent Supreme Court decision, however, suggests that a brief detention of witnesses is in fact permitted, provided that it meets the reasonableness test in Brown. In Lidster, the Court upheld the use of a highway checkpoint at which officers briefly detained motorists to ask them for any information they might have about a fatal hit-and-run accident. The Court upheld the use of the checkpoint because, among other things, the stop posed only a minimal interference with the motorists’ liberty, requiring only a brief wait in line, and provided little reason for anxiety or alarm. Lidster, 540 U.S. at 427-28.

In Lidster, the officers manning the checkpoint asked motorists in general to supply them with information, without knowing whether any motorist had the information sought. Here, by contrast, the officers had much greater reason to believe that one or more of the plaintiffs had specific information about the shooting in question. Thus, the seizure involved here advanced the public interest to a much greater degree than the roadblock involved in Lidster. See Brown, 443 U.S. at 51. This being the case, a longer detention than that involved in Lidster may have been reasonable. At a minimum, officers had a right to identify witnesses to the shooting, to obtain the names and addresses of such witnesses, and to ascertain whether they were willing to speak voluntarily with the officers. Cf. Hiibel v. Sixth Judicial District Court, 542 U.S. 177, 186-88 (2004) (stating suspect subjected to valid Terry stop may be required to disclose his name during the course of the stop).

Plaintiffs’ primary objection to the detention here involves its allegedly excessive duration. We have located no federal court precedent establishing a specific time limit for witness detention. However, even if a brief detention could be justified in this case to attempt to obtain names and addresses of the witnesses (and statements if they were willing to provide them), a ninety-minute detention for this purpose was unreasonable. See United States v. Place, 462 U.S. 696, 709 10 (1983) (“[A]lthough we decline to adopt any outside time limitation for a permissible Terry stop, we have never approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case.”) (footnote omitted). There is no indication in plaintiffs’ complaint that any exigencies were present in this case, justifying the lengthy detention involved here for investigative purposes. We therefore conclude that the detention alleged in plaintiffs’ complaint could not reasonably be justified using an investigative rationale.

The other rationale offered for the extended detention identified in plaintiffs’ complaint is the need to establish control over the crime scene. The question is whether detaining plaintiffs in their home, and in particular, detaining them for ninety minutes as alleged in their complaint, could be considered “reasonable” as a means of controlling the crime scene.

We note that detaining the plaintiffs is a different matter from excluding them from the crime scene itself. Thus, even if plaintiffs had no right to cross the crime scene tape to be with David before he died, this does not necessarily mean that the police had the right to detain them, even in their own home.

The Supreme Court has recognized that detention or control of both suspects and non-suspects may be necessary to insure officer safety and to maintain the officers’ control over a crime scene. Thus, officers conducting a Terry stop are “authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop.” United States v. Hensley, 469 U.S. 221, 235 (1985). The detention of non-suspects incidentally present on the scene, in the interest of officer safety, should not ordinarily exceed in scope or duration that of the suspects directly targeted by the Terry stop itself. We have already held that Terry-style principles (which may be less directly applicable to witnesses, as opposed to suspects) cannot be used to justify the ninety minute detention plaintiffs allege in this case.

A more extensive detention may be permitted where officers have secured a valid search warrant, and they find non-suspects on the premises to be searched. In Michigan v. Summers, 452 U.S. 692 (1981), the Supreme Court permitted officers in such circumstances to detain the persons they found, and even to compel people outside the home to re-enter the premises and stay there, if necessary. The Court reasoned that “[t]he detention of one of the residents while the premises were searched, although admittedly a significant restraint on his liberty, was surely less intrusive than the search itself,” for which a warrant had been obtained. Id. at 701. While the Court noted that “[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation,” id. at 702-03, we have found no case extending this principle outside the context of a search pursuant to a warrant or probable cause. Such circumstances are of course absent in this case.

In United States v. Edwards, 103 F.3d 90 (10th Cir. 1996), police pulled over an automobile containing a frequent visitor to a drug house, just prior to execution of a warrant at that house. They detained him at streetside for forty five minutes, three blocks from the house, during which time he was handcuffed and guns were drawn. This court held that the extended detention had been illegal because (1) the defendant did not know the warrant was being executed, and had no reason to flee; (2) the police knew where he lived, and could have stopped him briefly, then tailed him; (3) the defendant admittedly posed no risk of harm to them; and (4) his detention played no part in facilitating the search. Id. at 93-94. We ultimately upheld the defendant’s conviction for other reasons, but opined that he “was illegally arrested during the approximately thirty minutes between the time when the police completed their [fifteen minute] ‘Terry search’ of his person and vehicle, and the time when the discovery of [a drug lab at the residence] gave rise to probable cause for [his] arrest.” Id. at 94.

Police officers may also conduct a “protective sweep” and limited search of a premises, incident to an arrest, to protect the safety of officers and others. Maryland v. Buie, 494 U.S. 325, 327 (1990). Such a sweep, however, may only be conducted if the officer reasonably believes that the area harbors an individual posing a danger to himself or others. Id. Moreover, the sweep must last “no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” Id. at 335-36. The extended detention at issue in this case cannot be justified as part of a protective sweep.8

Finally, in the exercise of their “community caretaking function,” officers may occasionally find it necessary to detain individuals to prevent them from harming themselves or others. United States v. King, 990 F.2d 1552, 1560 (10th Cir. 1993). Nothing in the evidence suggests that such a detention was reasonably necessary here.

In sum, based on the facts recited in plaintiffs’ complaint, the lengthy detention alleged in this case was unreasonable and was not justified by either the need for investigation of a crime or control of a crime scene. Having concluded that plaintiffs have adequately alleged a violation of their Fourth Amendment rights, we turn to whether the legal rule protecting those rights allegedly violated by defendants was “clearly established” at the time of the events in question. Anderson v. Creighton, 483 U.S. 635, 639 (1987).


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