Can I See You With My Flash Suppressor? Not In The 10th Circuit

REEVES v. CHURCHICH, USCA-10 No. 04-4240, 2007 U.S.App. LEXIS 9301, on appeal from USDC-UTD, before USCJs Murphy, Seymour, O'Brien, opinion by O'Brien, filed 24 Apr 2007.

LONG STORY SHORT: Officer did not conduct a Fourth Amendment search by allegedly inserting a rifle barrel through a home's slightly open window, and since no one submitted to the show of force, neither did the officer seize anyone. Binding in CO, KS, NM, OK, UT, WY.

FACTS: Defendant, a detective with the Salt Lake County, UT Sheriff's Office had probable cause to arrest Diviney for assaulting his estranged wife. Defendant did not have an arrest warrant, but learned from a witness that Diviney was staying at the Bells' residence, was possibly armed, and planned to depart the jurisdiction. Defendant brought along several officers from the Salt Lake City PD to the Bells', which was the second story of a duplex, to try a knock-and-talk with the hope of getting permission to enter and search for Diviney.

The only way into the duplex was the unlocked front door, which had stairs leading up to the Bell apartment and down to the lower apartment. All the windows in the duplex had bars over them. After discussion about how best to proceed, Defendant and some of the officers decided to enter the duplex, leaving the other officers outside to contain the building and prevent Diviney's escape. All officers had weapons in hand, and some, including Defendant, had rifles. Plaintiff, a 14-year-old female in the lower apartment, had just finished taking a shower when she noticed the commotion outside, and ran into her mother's bedroom, which had an open window with bars and foliage protecting it. Plaintiff testified (and Defendant denied) that Defendant inserted his rifle barrel through the foliage and bars until the barrel was inside the room, and that the barrel followed her as she moved around. Plaintiff also heard someone say "get down on the ground." Instead, she closed the window blinds and ran to another room. One of the other officers testified to pointing a rifle at Plaintiff's window when he saw movement inside.

Plaintiff's mother went outside to find out what was going on, and saw officers pulling Sharon Bell out of the upper apartment. Plaintiff's mother inquired strongly of the officers as to what they were doing, only to have one of them (and he denied doing so) tell her "get back in your apartment, bitch." Diviney, the object of the officers' quest, proved not to be in the building, and in fact was apprehended in Las Vegas sometime later.

PROCEDURE: Plaintiff and her mother sued Defendant and the other officers in U.S. District Court for the District of Utah per 42 U.S.C. § 1983 for violating their Fourth Amendment right to be free from unreasonable search and seizure. After discovery, Defendant moved for summary judgment on qualified immunity grounds, arguing that even assuming Plaintiff's truthfulness, a rifle barrel inserted through a window was not a search, and because Plaintiff moved away instead of submitting to the show of force, she suffered no seizure either. The trial court agreed, and also ruled that even if Defendant's actions amounted to a search or seizure, the same was reasonable under the circumstances and did not violate the Fourth Amendment. QUALIFIED IMMUNITY GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Tenth Circuit.

DECISION: The duplex's open yard was not part of Plaintiff's curtilage, so Plaintiff had no reasonable expectation of privacy that would the officers to be there. It was also well known that once the officers were in the yard, they did not have to avert their gaze from any open windows; the bars and foliage on Plaintiff's window did not render it closed. Defendant's merely looking through the window was not an unreasonable search.

However, no prior Tenth Circuit cases addressed whether an officer's rifle barrel inserted through an open window was a search. Most "search" cases from around the nation involved some sort of sensory device, or part or all of an officer's person, inserted into a home's interior. Another example of a search is testing a key to see if it will open a particular lock. In other words, officers are generally trying to gather information when "search"ing. The Tenth Circuit found it persuasive that Defendant's rifle barrel could not gather any information, at least not more than what Defendant could already see when looking in the same direction, and therefore Defendant did not search Plaintiff with his rifle barrel. At most, this was common-law trespass.

Neither did the officers "seize" Plaintiff or her mother under the totality of circumstances. Despite the show of force, including allegedly calling Plaintiff's mother "bitch" (which the Tenth Circuit does not recommend doing), Plaintiff and her mother did not submit, and continued to do things contrary to the officers' commands. Even if the officers' actions were a seizure, it was a reasonable one, because they were there to apprehend a suspect in a violent crime and were justified in having weapons ready. Given that no officer violated any constitutional right, the second part of the qualified immunity test (whether a reasonable officer would have known his conduct to be illegal at the time) was moot. GRANT OF QUALIFIED IMMUNITY AFFIRMED.

EDITORIAL: Most interesting. The opinion mentioned how the "victims" testimony shifted a bit, such as the mother at first saying a gun was pointed at her face, and then later saying the muzzle touched her face. Neither do I deem it certain that the detective shoved his rifle barrel into the window. Likely, this case would not have survived in the end.

Nonetheless, breaking the window plane (or pane) with your longarm's muzzle does not seem a particularly capital idea. For sure, the open end of an AR-15 flash suppressor is mighty scary to me, and the closer it is, the more I would be likely to surrender before finding out whether the raggedy cavities that 5.56mm inflicts on ballistic gelatin are an accurate predictor of real wounds. The downsides are, now you've given whoever is inside a means of grabbing your rifle barrel. They just might get a good enough grip to rip your rifle out of your grip. At the least, they can deflect your barrel with one hand and use the other hand to empty their gun into you point-blank. I suppose I should go ask some high-speed types what they think.

More legal questions--is it still not a search if your patrol rifle, like mine, DOES have information-gathering capability, in the form of a riflescope with up to 4x magnification? How about if the scope is only at 1.1x magnification? Also like mine, maybe you have a SureFire 900A weaponlight that resembles the one on the tripods in War of the Worlds--is that a search if you shine 230 lumens inside? How about the little blue LED navigation lights? Maybe UNlike me you have a PVS-14 night sight--is that different from plain view if you point it in an open window? The next time I'm at home alone and the TV is broken, I'll write an essay on these and more.