                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                                October 1, 2012
                                    PUBLISH                Elisabeth A. Shumaker
                                                               Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 MICHAEL STOREY,

             Plaintiff-Appellant,
       v.                                            No. 11-2180
 SERGEANT TAYLOR; OFFICER
 ROBERT FERREYIA OF THE LOS
 LUNAS POLICE DEPARTMENT;
 VILLAGE OF LOS LUNAS,

             Defendants-Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                (D.C. NO. 1:08-CV-00207-JCH-LAM)


Joseph P. Kennedy, Kennedy Law Firm, Albuquerque, New Mexico, for
Appellant.

Gregory V. Pelton, Colorado Springs, Colorado, for Appellees.


Before BRISCOE, Chief Judge, BALDOCK, and TYMKOVICH, Circuit
Judges.


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.

                              I. BACKGROUND 1

      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 2:


      1
          In reviewing the grant of summary judgment, we view the facts presented
in the light most favorable to the nonmoving party, Storey. See Dodds v.
Richardson, 614 F.3d 1185, 1191–92 (10th Cir. 2010).
      2
          The quality of the audio is inconsistent, and portions of the tape are
                                                                         (continued...)

                                          -2-
      TAYLOR: Hi. Was there an argument here?
      STOREY: My wife was, yeah.
      TAYLOR: Your wife was?
      STOREY: Yeah.
      TAYLOR: OK, that’s why we’re here. What’s going on? Is your
              wife here now?
      STOREY: No.
      TAYLOR: She’s not here now?
      STOREY: Uh-uh.
      TAYLOR: OK. Did she [inaudible] with you or what went on?
      STOREY: We had a little argument. I don’t know who called.
      TAYLOR: OK, she didn’t call, your neighbor called.
      STOREY: OK.
      TAYLOR: OK. You guys stand outside arguing and fussing . . .
      STOREY: Listen, listen, it wasn’t outside.
      TAYLOR: Well, here’s the deal. Your neighbors called, OK.
      STOREY: I was not outside.
      TAYLOR: Well, it doesn’t matter. If they hear you, it’s the same
              as you being outside. Alright? That’s how that works.
              OK? I’m sitting here. As long as you guys are safe and
              there’s only one of you home, that’s all we’re concerned
              about.
      STOREY: [inaudible]
      TAYLOR: There’s no one else in the house with you?
      STOREY: My dogs.
      TAYLOR: Your dogs are in the house with you? OK. Is your wife
              coming home later, what’s going on with [inaudible]
      STOREY: [inaudible]

Supp. App., Belt Tape.




      2
       (...continued)
inaudible. The district court admitted the tape into evidence but denied the
admission of a formal transcript. The exchange we recount here is a reasonable
interpretation of the audio, but does not necessarily reflect the exact words used.
In any event, Taylor does not dispute the essential accuracy of Storey’s
interpretation of the belt tape, which aligns with the interpretation we present
here.

                                         -3-
      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:

      TAYLOR: Now, what started the argument?
      [inaudible]
      STOREY: Do I have to tell you everything?
      TAYLOR: Yes you do. You have to tell me what’s going to be
                  safe.
      STOREY: I do not have to tell you anything.
      TAYLOR: Sir, step out of the house.
      STOREY: No.
      TAYLOR: Step out of the house.
      STOREY: I’m not doing it.
      TAYLOR: You’re going to step out of the house.
      STOREY: No.
      TAYLOR: Listen. You shall obey my command and step outside
                  the house or you go to jail. Step outside.
      STOREY: I am not doing that.
      TAYLOR: Step out of the house.
      STOREY: Why are you doing this?
      TAYLOR: You are going to comply with a lawful order. You don’t
                  want to deal with this, you can go to jail.

Id.

      At this point, Taylor appears to have pulled Storey outside, handcuffed

him, and placed him under arrest. 3 After another exchange that is mostly

inaudible on the belt tape, Taylor said:

      TAYLOR: You’re going to jail because you refuse to comply
              because you’ve got a case of the attitude.
      STOREY: I’ll lay down on the ground if you want me to.
      TAYLOR: Nope. You want to be a smart alec and you want to
              think you’re going to tell me your rights? Here, let me

      3
         Taylor strongly disputes that he pulled Storey out of his house,
contending Storey was already outside. But, again, for present purposes, we view
the facts in the light most favorable to Storey.

                                           -4-
                    tell you State of New Mexico. You’re required to obey
                    me when I issue you a lawful order. So now you can go
                    to jail. Take him to jail. Resist to obey, twenty-five
                    hundred dollars.

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. 4 The defendants removed to the

United States District Court for the District of New Mexico. The district court

granted summary judgment for the defendants on Storey’s wrongful arrest and

retaliatory arrest claims, but allowed Storey’s excessive force claim to proceed to

trial. The jury did not reach a verdict on the excessive force claim, and Storey

has now abandoned that claim. Taylor is the only remaining defendant.

      Storey appeals the district court’s grant of summary judgment.




      4
        Theresa Storey’s claims went to trial and she obtained a judgment against
Taylor on her unlawful detention claim.

                                         -5-
                               II. DISCUSSION

      A. Standard of Review

      “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.

      A constitutional right is clearly established when, at the time of the
      alleged violation, the contours of the right were sufficiently clear that
      a reasonable official would understand that his actions violate that
      right. . . . While the plaintiff does not have to present a case with an
      identical factual situation, the plaintiff must show legal authority
      making it apparent that in the light of pre-existing law a reasonable
      official would have known that the conduct in question violated the
      constitutional right at issue. In determining whether a right was
      clearly established, we look for Supreme Court or Tenth Circuit
      precedent on point or clearly established weight of authority from
      other courts finding the law to be as the plaintiff maintains.

Id.

      With these principles in mind, we consider Storey’s claims.



                                         -6-
      B. Unlawful Arrest

      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.

             1. Legal Standards

      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). 5

      In determining whether the risk of personal danger creates exigent

circumstances, we use a two-part test: “whether (1) the officers have an

      5
        We note that a warrantless search—as opposed to a seizure—may
sometimes be justified by exigent circumstances even without probable cause.
See United States v. Najar, 451 F.3d 710, 718 (10th Cir. 2006).

                                          -7-
objectively reasonable basis to believe there is an immediate need to protect the

lives or safety of themselves or others, and (2) the manner and scope of the search

is reasonable.” United States v. Najar, 451 F.3d 710, 718 (10th Cir. 2006). In

determining whether officers had an objectively reasonable basis, “[w]e evaluate

whether the officers were confronted with reasonable grounds to believe there

was an immediate need ‘guided by the realities of the situation presented by the

record’ from the viewpoint of ‘prudent, cautious, and trained officers.’” Id.

(quoting United States v. Anderson, 154 F.3d 1225, 1233 (10th Cir. 1998)). This

inquiry “is essentially one of reasonable belief.” Id. (citing United States v. Gay,

240 F.3d 1222, 1227 (10th Cir. 2001)).

      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:




                                         -8-
      must be based upon specific and articulable facts which reasonably
      warrant an intrusion into the individual’s liberty. Additionally, the
      government’s interest must outweigh the individual’s interest in
      being free from arbitrary governmental interference. Finally, the
      detention must last no longer than is necessary to effectuate its
      purpose, and its scope must be carefully tailored to its underlying
      justification.

United States v. Garner, 416 F.3d 1208, 1213 (10th Cir. 2005) (citation,

alterations, and quotation marks omitted).

            2. Probable Cause

      Taylor claims he had probable cause to arrest Storey for failure to obey a

lawful order—specifically, the order to exit the house. 6 Taylor admits he did not

have probable cause to believe Storey committed a domestic-violence-related

offense.

      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, 131 S. Ct. 1849, 1862 (2010) (“[E]ven if an occupant chooses


      6
         New Mexico law criminalizes “resisting or abusing any . . . peace officer
in the lawful discharge of his duties.” N.M.S.A. 1978 § 30-22-1(D). A detention
pursuant to this statute is only justified if the order is actually lawful. See
Romero v. Story, 672 F.3d 880, 889 (10th Cir. 2012).

                                        -9-
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 (10 th Cir. 2008)

(“Circumstances that indicate a seizure include, the threatening presence of

several officers, the display of a weapon by an officer, some physical touching of

the person of the citizen, or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.”) (internal quotation

marks omitted). Although the order to “step out of the house” could be

construed as an investigatory detention rather than a full arrest, that distinction

does not matter in an individual’s own home, see Armijo, 601 F.3d at 1073; the

“sanctity of the home” lies “at the very core of the Fourth Amendment” and

cannot reasonably be disturbed absent exigent circumstances. Payton v. New

York, 445 U.S. 573, 589–90 (1980) (alterations and quotation marks omitted);

accord King, 131 S. Ct. at 1856.

      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.

             3. 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.




                                         -10-
       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.

                                         -11-
      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 outside. The plaintiff eventually complied and was placed under arrest.

After officers searched the plaintiff’s house, they let him 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

                                         -12-
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.

      •      United States v. Holloway, 290 F.3d 1331, 1338 (11th Cir. 2002) –

             reports of gunfire from two independent sources. Gunfire, obviously,

             is more indicative of exigent circumstances than a loud argument

             between spouses.




                                        -13-
      •     Tierney v. Davidson, 133 F.3d 189, 192 (2d Cir. 1998) – before

            entering the dwelling, officer conferred with two witnesses on the

            scene, who reported “screaming and banging” continuing until the

            officer arrived. The officer also saw broken glass, indicating recent

            violence.

      •     Schreiber v. Moe, 596 F.3d 323, 330 (6th Cir. 2010) – investigating

            officer heard ongoing shouting as he approached the dwelling, and

            was greeted “with a slew of profanities.” 7

      •     United States v. Brooks, 367 F.3d 1128, 1134 (9th Cir. 2004) – caller

            reported sounds of an argument and physical beating in a hotel room,

            not just arguing. In addition, the investigating officer personally

            spoke with the caller in the hotel lobby to confirm the report and

            gather additional information before proceeding to the hotel room.

      •     Fletcher v. Town of Clinton, 196 F.3d 41, 47 (1st Cir. 1999) – police

            did not observe any signs of ongoing violence. But they did observe

            two individuals in the home, one of whom they knew had a

            restraining order against the other based on recent threats of

      7
        Below, the district court found Storey was “red-faced and agitated” when
he answered the door. Aplt. Errata Sheet at 10. Storey, however, disputes that he
was agitated or otherwise acting in a threatening manner when he answered the
door. Certainly, it is not obvious from the belt tape that Storey was upset when
he opened the door (though he became so later in the encounter). Thus, this
presents a disputed issue of fact unsuitable for resolution at the summary-
judgment stage.

                                       -14-
             violence. Thus, unlike Taylor, the officers in Fletcher were privy to

             additional facts that made violence more likely.

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, 132 S.

Ct. 987 (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 (2006), police

were investigating a loud party at a residence. When they arrived, they “heard

                                         -15-
shouting from inside,” and approached the house to investigate further. Id. at

401. 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. 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.

             4. Community Caretaker Exception

      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

                                         -16-
City, 547 U.S. at 406. 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 decisions based on

incomplete information. We also recognize these decisions are sometimes

complicated in potential domestic violence situations, in which one occupant’s

interest in privacy may be pitted against another’s safety. It is our hope that

citizens would be cooperative with police under such circumstances.

Nonetheless, these policy concerns must yield to the Fourth Amendment. Absent

additional facts indicating a greater possibility of violence, a loud argument

between spouses does not suffice to justify a warrantless seizure within the home.

             5. Qualified Immunity

      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

                                         -17-
circumstances were required. Armijo, 601 F.3d at 1070. Accordingly, Taylor is

not entitled to qualified immunity.

      C. Retaliatory Arrest

      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, 132 S. Ct. 2088, 2096 (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.




                                          -18-
                          III. CONCLUSION

     For the reasons stated above, we REVERSE the district court’s grant of

summary judgment and REMAND for further proceedings.




                                     -19-
