Valdez v. McPheters, 97-4057

• Citation: 172 F.3d 1220
• Decision Date: 05 April 1999
• Docket Number: No. 97-4057,97-4057
• Parties: Rosanna VALDEZ, Plaintiff-Appellant, v. Samuel McPHETERS, an agent of the Federal Bureau of Investigation, and Greg Littlewhiteman, an officer of the Bureau of Indian Affairs, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1220

172 F.3d 1220

Rosanna VALDEZ, Plaintiff-Appellant, v. Samuel McPHETERS, an agent of the Federal Bureau of

Investigation, and Greg Littlewhiteman, an officer

of the Bureau of Indian Affairs,

Defendants-Appellees.

No. 97-4057.

United States Court of Appeals, Tenth Circuit.

April 5, 1999.

Stephen C. Clark (Pamela Martinson on the brief) of American Civil Liberties Union of Utah Foundation, Inc., Salt Lake City, Utah, for Plaintiff-Appellant.

Paul Michael Brown, Torts Branch, Civil Division, Washington, D.C., (Barbara L. Herwig, Appellate Staff, Civil Division, Washington, D.C., with him on the brief) for Defendants-Appellees.

Before EBEL and BRISCOE, Circuit Judges, and MARTEN, ^* District Judge.

MARTEN, District Judge.

On December 7, 1993, FBI Special Agent Samuel Michael McPheters and Bureau of Indian Affairs ("BIA") Police Officer Gregory Littlewhiteman arrived at the plaintiff Rosanna Valdez's residence in LaPoint, Utah. The officers told the plaintiff that there was an outstanding felony warrant for the arrest of her son, Raymond Nathaniel Valdez. McPheters told the plaintiff they would like to come inside to see if her son was present.

There is a dispute as to whether the plaintiff consented to the officers' entry. According to the officers, the plaintiff told them to "go ahead." The plaintiff states that she told the officers they could not search for her son without a search warrant.

Special Agent McPheters looked through the residence while Officer Littlewhiteman remained with several other persons in the living room area. When they were unable to find Raymond Valdez, the officers left the residence and continued their investigation. They spoke with Sherman Dubois, who told the officers that he had seen Raymond Valdez at the residence earlier in the day. The officers then returned to the Valdez residence, but were again unable to find Raymond.

On December 27, Raymond Valdez surrendered to authorities and was placed in the Uintah County jail.

Plaintiff Rosanna Valdez subsequently instituted the present action, alleging the defendants McPheters and Littlewhiteman violated her constitutional rights against unreasonable search and seizure. On March 14, 1996, the District Court granted the defendants' Motion for Summary Judgment. This appeal followed.

Special Agent Samuel Michael McPheters has worked for the FBI for 27 years. At the time of the events giving rise to this litigation, he served as Resident Agent in Charge of the FBI's Vernal, Utah office. Officer Gregory Littlewhiteman is a BIA Police Officer assigned to the Uintah and Ouray Agency, headquartered at Ft. Duchesne, Utah. Littlewhiteman is an enrolled member of the Oglala Sioux tribe. As a result of his job and participation in community outreach activities, Littlewhiteman has become personally acquainted with many of the people who live on or around the Uintah-Ouray reservation.

In November of 1993, the Salt Lake City Police Department obtained an arrest warrant for Raymond Nathaniel Valdez. Valdez was charged by information with one count of burglary (a second degree felony), and one count of theft (a third degree felony). The Salt Lake City police requested assistance from the FBI in apprehending Valdez, advising the agency that "VALDEZ comes into the city on weekends, does a burglary or two then goes back to the Indian Reservation at LaPoint, Utah. VALDEZ's mother, ROSANNE VALDEZ, lives at LaPoint." The police also provided the agency with the telephone number for the Valdez residence. (R. 8, at 1).

Rosanna Valdez, the plaintiff, lives in Uintah County, near the town of LaPoint, Utah, with her husband Raymond Valdez, Sr., and several other family members. The residence has a telephone, the number matching that given by the Salt Lake City police to the FBI. An attorney fact sheet filed with the warrant lists Raymond, Jr.'s physical characteristics and denominates his address as "transient." (R. 7).

The FBI's Fugitive Task Force notified Special Agent McPheters of the state arrest warrant for Raymond Valdez on December 7, 1993. McPheters drove to the BIA police headquarters in Ft. Duchesne, where he asked Lt. Ed Reynolds about Valdez's whereabouts. Reynolds told McPheters that Valdez was living at the Valdez residence in LaPoint. Reynolds assigned Officer Littlewhiteman to assist in finding Valdez.

Littlewhiteman told McPheters that Valdez was living at the Valdez residence in LaPoint. Littlewhiteman based this conclusion on information he had gathered during his police duties. This information included the following:

1) On September 27, 1993, while being booked on a drug charge, Valdez stated in Littlewhiteman's presence that he lived with his mother in LaPoint.

2) Littlewhiteman knows Valerie Tom, who is a friend, neighbor and relative of his wife. In the fall of 1993, Tom was married to Odorico Palesides. Littlewhiteman had twice arrested Palesides on spouse abuse charges during this time period. During the course of making these arrests, Littlewhiteman learned that Palesides was an associate of Raymond Valdez. He also knew by sight Tom's Toyota pickup truck. Tom told Littlewhiteman that Palesides used the pickup truck to drive to the Valdez residence to meet Raymond Valdez, and that the two would go out drinking. This information corresponded with Littlewhiteman's observations during his routine patrols, having seen the pickup truck on several occasions at the Valdez residence during October and November.

3) On December 3, 1993, Roosevelt City Police Officer Steve Hooley told Littlewhiteman that Raymond Valdez was living at the Valdez residence in LaPoint.

4) On December 4, 1993, Littlewhiteman investigated a single-vehicle accident about a quarter mile from the Valdez residence. He recognized the vehicle as Valerie Tom's Toyota truck. The vehicle was abandoned, but two star-shaped imprints on the windshield indicated that a driver and a passenger had been in the truck at the time of the accident. Footprints led from the vehicle in the direction of the Valdez residence.

There is a dispute about what one of the neighbors told Littlewhiteman in connection with the accident. According to Littlewhiteman, Bonnie Hackford Murphy told him she had seen the truck at the Valdez residence earlier in the day, driven by a Mexican male, and that she had previously seen this person in the company of Raymond Valdez. The plaintiff has submitted an affidavit from Murphy denying she made these comments to Littlewhiteman. It is undisputed, however, that the accident occurred in close proximity to the Valdez residence, and that Littlewhiteman knew the vehicle was used by a friend of the suspect under investigation.

5) It is uncontroverted that Littlewhiteman knew that Raymond Valdez was unemployed, that he liked to stay out late at night drinking, that he sometimes abused drugs including heroin and cocaine, and that he was suspected of several nighttime burglaries. From the knowledge of his lifestyle gained during the course of his normal law enforcement duties, Littlewhiteman believed that Valdez would be at the Valdez residence about noon on December 7, 1993.

The district court granted the defendants' summary judgment motion, finding under Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980) and Steagald v. United States, 451 U.S. 204, 214 n. 7, 101 S.Ct. 1642, 1649 n. 7, 68 L.Ed.2d 38 (1981), the legality of the defendants' entry into the Valdez residence was governed by the "reasonable belief of an officer, qualified immunity as to whether a person is in a residence at a place and present there." (R. 5, Tr. at 42). The court then concluded that there were "sufficient grounds upon which a reasonable officer could form that belief [and] therefore qualified immunity does apply." Id. at 42-43.

In the present appeal, Valdez contends that the defendants' entry into her residence violated her rights protected under the Fourth Amendment. A person's expectation of privacy in her residence "is plainly one that society is prepared to recognize as justifiable." United States v. Karo, 468 U.S. 705, 714, 104 S.Ct. 3296, 3303, 82 L.Ed.2d 530 (1984). "At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734 (1961). In order to protect this important interest, the Supreme Court has emphasized that the Fourth Amendment draws "a firm line at the entrance to the house," prohibiting a warrantless entry except in limited circumstances. Payton, 445 U.S. at 590, 100 S.Ct. at 1382.

One of the circumstances which may permit an entry into a residence without a search warrant is the existence of a valid arrest warrant for a suspect who is believed to live in the residence. This is because "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." Payton, 445 U.S. at 603, 100 S.Ct. at 1388. "Because an arrest warrant authorizes the police to deprive a person of his liberty, it necessarily also authorizes a limited invasion of that person's privacy interest when it is necessary to arrest him in his home." Steagald, 451 U.S. at 214 n. 7, 101 S.Ct. at 1649 n. 7. Absent exigent circumstances, however, an arrest warrant by itself does not authorize entry into the home of a third party. Id., at 215, 101 S.Ct. 1642.

The majority of circuits which have addressed the issue have agreed that, under Payton, police officers entering a residence pursuant to an arrest warrant must demonstrate a reasonable belief that the arrestee lived in the residence, and a reasonable belief that the arrestee could be found within the residence at the time of the entry. See United States v. Route, 104 F.3d 59, 62 (5th Cir.) ("A...