                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  March 10, 2010
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 ROBERT GERALD HARRIS,

               Plaintiff - Appellant,                    No. 09-3272
          v.                                              (D. Kansas)
 REGGIE FORD; RON HARRIS;                      (D.C. No. 5:07-CV-03079-MLB)
 NEAL TIERNEY; and MELVIN
 DALE,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Plaintiff and appellant Robert Gerald Harris appeals the grant of summary

judgment to defendants in this 42 U.S.C. § 1983 action 1 arising out of two

searches of Mr. Harris’s home. For the following reasons, we affirm.



                                 BACKGROUND

      Mr. Harris resided at 203 Russell Street in Scott City, Kansas, at the time

of the events relevant to this case. On October 5, 2005, Scott City emergency

dispatch was told that Mr. Harris was at 801 West 4 th Street, with an apparently

self-inflicted gunshot wound in his hand. Scott City police officer Reggie Ford

went to the 4 th Street location, and was immediately told by Deputy Milton

Masters, who was already at the scene and who was with Mr. Harris, to go to

Mr. Harris’s residence on Russell Street and look for a spent shotgun shell “in

two old cars.” Ford Dep. at 32, 87; R. Vol. 3 at 135, 141. Officer Ford arrived at

Mr. Harris’s residence and searched the vehicles but did not find a shotgun shell.

Officer Ford observed blood on a lawn chair near the front porch, as well as on

the porch itself and on the front door. The officer entered the residence to look

for injured persons.

      While looking for anyone injured, Officer Ford saw the following items:

.22 caliber shells, ladyfinger firecrackers with no fuses, some pipe, some pieces

      1
      As explained more fully, infra, Mr. Harris’s action against one of the
defendants is a Bivens action. See Bivens v. Six Unknown Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971).

                                        -2-
of guns, a pair of hemostats, a clock, some wristwatches, and some small hand

tools. Believing that these items were being used to construct a bomb, the officer

returned to his vehicle and retrieved his camera. Officer Ford reentered

Mr. Harris’s residence and stayed there for approximately an hour. The officer

seized items and took photographs. Throughout this time period, Officer Ford did

not have a search warrant or consent to search from Mr. Harris. Additional

officers arrived at the scene to assist Officer Ford.

      In the evening of October 5, the officers contacted defendant Neal Tierney,

a Special Agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives,

because of the officers’ concern that Mr. Harris might actually have been injured

by a pipe bomb explosion. Agent Tierney ordered a criminal background check

on Mr. Harris, which revealed his status as a felon. Ronald Harris 2 and Melvin

Dale, investigators for the Kansas State Fire Marshal, were also contacted.

      On October 6, Agent Tierney and Investigator Harris interviewed

Mr. Harris at the hospital where he awaited surgery. During this interview, Agent

Tierney asked Mr. Harris what had happened, and Mr. Harris described how a

device inside a box “went off,” resulting in the injury to his hand. Mr. Harris

further stated that someone had planted the device in the box and that this person

was out to “get” him. Mr. Harris admitted to having ammunition in his home and

      2
       Because the plaintiff, Mr. Harris, and investigator Ronald Harris share the
same last name, we continue to refer to the plaintiff as Mr. Harris, and the
investigator as Harris or Investigator Harris.

                                          -3-
he further admitted that he had set up several booby-traps for unwelcome visitors.

Mr. Harris indicated that he was concerned about items that were removed from

his residence on October 5, because he had been informed that Officer Ford had

removed five bags from his residence, and Mr. Harris wanted Agent Tierney to

determine what had been removed. Agent Tierney then asked Mr. Harris for

consent to search his residence, and Mr. Harris signed a written consent to search

his residence, the vehicles on site, and the out buildings. When Investigator

Harris asked Mr. Harris if his injury was painful, Mr. Harris responded that “it

wasn’t all that painful.” The investigator also indicated in his report that Mr.

Harris was attached to an IV machine to administer pain medication.

      Later that day (October 6), Agent Tierney, Harris, Dale and others entered

Mr. Harris’s residence to conduct a second search. Inside Mr. Harris’s home,

they noted on the coffee table “a mix of items including 22 cal ammunition and

12 gauge shotgun shells.” Report at 2; R. Vol. 1 at 136. The following items

were listed on the “receipt for property” seized on October 6: eighteen .22 live

federal ammunition, three 12-gauge ammunition, a rifle, pieces of pipe and nails,

and drug paraphernalia.

      Mr. Harris was subsequently charged with one count of being a felon in

possession of ammunition. The government then filed a superseding indictment,

charging Mr. Harris with being a felon in possession of ammunition, a gun and

methamphetamine. Mr. Harris filed a motion to suppress the evidence seized

                                         -4-
from his residence. Ultimately, the government moved to dismiss the counts, and

the court granted the government’s motion without prejudice. The government

has not re-filed charges against Mr. Harris, and the record is silent as to the

reasons for the dismissal and failure to re-file.

      On December 9, 2005, Mr. Harris filed a pro se civil action against the

Scott County Sheriff’s Office, alleging that his constitutional rights were violated

by the seizure of “personal valuable possessions that have absolutely no bearing

on the case brought against the plaintiff by the government.” Civil Action at 1;

R. Vol. 2 at 148. Mr. Harris further asserted that certain personal items were

taken and he sought the return of those items (three watches, an address book and

wedding rings). On May 15, 2006, Mr. Harris executed a release of all claims.

He was given $3,000 in exchange for releasing “Scott County, Scott City, their

agents . . . and all other persons . . . from any and all claims . . . from an incident

which occurred on or about the 9 th day of December, 2005, in Scott County,

Kansas.” Release at 1; R. Vol. 2 at 152. 3 On that same date, a magistrate judge

dismissed the case with prejudice.




      3
        The parties agree that the date stated in the document, December 9, 2005,
is erroneous and should be October 5 and 6, 2005. Additionally, no party argues
that that civil action should have any res judicata or other preclusive effect on
this case. We decline to consider an issue not raised by the parties.

                                           -5-
      On March 28, 2007, Mr. Harris, proceeding again pro se, filed this § 1983

action 4 against defendants Officer Ford, Special Agent Tierney and Investigators

Dale and Harris, asserting that his constitutional rights were violated by the

defendants’ actions in searching his home on October 5 and 6, 2005. Mr. Harris

further alleged that Officer Ford conspired with Agent Tierney and Investigators

Harris and Dale to violate his rights by placing evidence seized on October 5 back

in his home so that it could be seized the next day after he had given his consent.

The district court appointed counsel after the defendants moved for summary

judgment on various grounds, including qualified immunity and consent.

      The district court granted summary judgment to the defendants, finding

they were entitled to qualified immunity for their actions in the searches on both

October 5 and 6, 2005, and that Mr. Harris had consented to the October 6 search.

With respect to the October 5 search, the court held:

      Since there is no Tenth Circuit or Supreme Court decision on point or
      a clearly established weight of authority from other courts, the court
      finds that the right to be free from a seizure of property after an
      officer has lawfully observed an item in plain view but left the
      location for a short period before the seizure has not been clearly
      established.



      4
       Because Agent Tierney is a federal officer, Mr. Harris’s action against him
is brought pursuant to Bivens v. Six Unknown Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), while his action against the other defendants is
under 42 U.S.C. § 1983. The qualified immunity and consent analysis is the same
for both actions. See DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 844
F.2d 714, 720 n.6 (1988).

                                         -6-
Memorandum & Order at 16; R. Vol. 3 at 251. The district court held that the

October 6 search was consensual. This appeal followed.

      On appeal, Mr. Harris argues the district court erred because it (1) failed to

find that the defendants were not protected by qualified immunity; (2) applied the

plain view doctrine; (3) failed to find that Officer Ford violated the Fourth

Amendment by entering Mr. Harris’s home without justification and then re-

entering the home for the sole purpose of gathering evidence; and (4) failed to

find that the defendants’ October 6 search violated the Fourth Amendment

because it was tainted by evidence acquired in the illegal search the day before

and because Mr. Harris’s consent was not voluntarily given.



                                   DISCUSSION

      “We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.” Martinez v. Beggs,

563 F.3d 1082, 1088 (10th Cir.), cert. denied, 130 S. Ct. 259 (2009). Summary

judgment should be granted “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c).




                                         -7-
      I. October 5 Search and Qualified Immunity

      Officer Ford contends that he is shielded by qualified immunity for the

warrantless search conducted on October 5, 2005. “The doctrine of qualified

immunity protects government officials from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Herrera v. City of

Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (quoting Pearson v. Callahan,

129 S. Ct. 808, 815 (2009) (further quotation omitted)). As we explained further:

      Qualified immunity balances two important interests—the need to
      hold public officials accountable when they exercise power
      irresponsibly and the need to shield officials from harassment,
      distraction, and liability when they perform their duties reasonably.
      The protection of qualified immunity applies regardless of whether
      the government official’s error is a mistake of law, a mistake of fact,
      or a mistake based on mixed questions of law and fact.

Id. (internal quotations omitted).

      We employ a two-pronged analysis to resolve a dispositive motion based on

qualified immunity. “First, a court must decide whether the facts that a plaintiff

has alleged or shown make out a violation of a constitutional right.” Pearson, 129

S. Ct. at 815-16 (internal citations omitted). “Second, . . . the court must decide

whether the right at issue was ‘clearly established’ at the time of the defendant’s

alleged misconduct.” Id. at 816. “With regard to this second [question], the

relevant, dispositive inquiry in determining whether a right is clearly established

is whether it would be clear to a reasonable officer that his conduct was unlawful

                                         -8-
under the circumstances presented.” Fogarty v. Gallegos, 523 F.3d 1147, 1155

(10th Cir. 2008) (internal quotations and brackets omitted). We may resolve a

question of qualified immunity on either ground “in light of the circumstances in

the particular case at hand.” Pearson, 129 S. Ct. at 818. We review de novo the

district court’s qualified immunity decision. Weigel v. Broad, 544 F.3d 1143,

1150 (10th Cir. 2008); see also Herrera, 589 F.3d at 1070. Accordingly, we begin

our qualified immunity analysis by determining whether there was any clearly

established constitutional right that was violated by Officer Ford’s entry into

Mr. Harris’s home on October 5, 2005, during which he seized certain items.

      It is undisputed that Officer Ford did not have a warrant when he searched

Mr. Harris’s home and seized items on October 5. “It is a basic principle of

Fourth Amendment law that searches and seizures inside a home without a

warrant are presumptively unreasonable.” United States v. Porter, No. 07-4158,

2010 WL 437337, at *2 (10th Cir. Feb. 9, 2010) (quoting Brigham City v. Stuart,

547 U.S. 398 (2006)). There are a few exceptions to the warrant requirement,

however, one of which is “when the exigencies [in a situation] . . . make the needs

of law enforcement so compelling that the warrantless search is objectively

reasonable under the Fourth Amendment.” Id. (internal quotation omitted). “This

exception must be strictly circumscribed by the exigencies.” Porter, 2010 WL

437337, at *2 (internal quotation omitted). Further, the “government bears the

burden of proving the exigency exception to the warrant requirement applies,”

                                         -9-
United States v. Najar, 451 F.3d 710, 717 (10th Cir. 2006), which burden “is

especially heavy when the exception must justify the warrantless entry of a

home.” Id.

      After the Supreme Court’s decision in Brigham City, we apply a two-fold

test to determine whether the government has proven that exigent circumstances

justify the warrantless entry of a home. We inquire “whether (1) the officers have

an 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.” Id. at 718. “We 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. at 718-19 (quoting

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

existence of exigent circumstances is a mixed question of law and fact.” Najar,

451 F.3d at 717 (internal quotation omitted).

      Here, the district court found that exigent circumstances existed: “the court

finds that the facts demonstrate that Ford reasonably believed that an individual

may have been injured inside of the home. Ford’s initial brief entry and search of

the residence was reasonable and did not itself violate the Constitution.”

Memorandum & Order at 12; R. Vol. 3 at 247. We agree with the district court.




                                         -10-
      Given the situation, it is clear that Officer Ford’s initial entry into Mr.

Harris’s house was justified by the circumstances facing him—the report that the

resident had sustained a serious injury, blood on the front porch and door, along

with the information that a spent shell casing was involved. Mr. Harris does not

seriously argue that the officer’s initial entry was unlawful. 5 We accordingly

agree with the district court’s conclusion that Mr. Harris’s rights were not

violated by that conduct.

      The next inquiry is whether it was unconstitutional for Officer Ford to

briefly exit Mr. Harris’s home to retrieve his camera and then re-enter it to take

photographs and seize items rather than, at that point, seeking a warrant or

seeking consent from Mr. Harris. The defendants argue that the “plain view”

exception to the warrant requirement makes Officer Ford’s seizure of items on

October 5 lawful. “The plain view doctrine authorizes seizure of illegal or

evidentiary items visible to a police officer whose access to the object has some

prior Fourth Amendment justification and who has probable cause to suspect that

the item is connected with criminal activity.” Harman v. Pollock, 586 F.3d 1254,

1264 (10th Cir. 2009) (further quotation omitted). We apply a three-part test

which the government must satisfy to justify application of the plain view


      5
       In his prior civil action Mr. Harris brought against the Scott County
Sheriff’s office, Mr. Harris “concede[d] that the Sheriff’s Office had a moral
obligation to see if anyone else was in danger within the home.” Petition at 1; R.
Vol. 1 at 70.

                                         -11-
exception: “(1) the officer [must be] lawfully in a position from which to view

the object seized in plain view; (2) the object’s incriminating character [must be]

immediately apparent— i.e.[,] the officer ha[s] probable cause to believe the

object was contraband or evidence of a crime; and (3) the officer [must have] a

lawful right of access to the object itself.” Id. (further quotation omitted).

      Mr. Harris argues that Officer Ford’s conduct violated the first and second

elements of the plain view test, since he argues (1) the officer was not lawfully in

the home or, if he was lawfully in the home to briefly check for other injured

people, Officer Ford went far beyond the scope of what was permissible; and (2)

Officer Ford did not know that the items observed were contraband because he

had not yet learned that Mr. Harris was a felon. We reject these arguments. We

have already held that Officer Ford was lawfully in Mr. Harris’s home, on the

legitimate quest to see if any other persons were injured and needed assistance.

And his observation of the items seized in plain view near more blood stains was

clearly within the scope of his search. As to whether the officer knew that the

items observed were contraband, we remind Mr. Harris that this rule does not

require an officer to “know or have an unduly high degree of certainty as to the

incriminatory character of the evidence under the plain view doctrine. All that is

required is a practical, nontechnical probability that incriminating evidence is

involved.” United States v. Castorena-Jaime, 285 F.3d 916, 924 (10th Cir. 2002)

(further quotations omitted). In this case, when Officer Ford entered Mr. Harris’s

                                          -12-
home and saw the items ultimately seized, he knew that there had been an

explosion that had seriously injured a person and left pools of blood both inside

and outside Mr. Harris’s home. In plain view near the blood were shotgun shells,

.22 caliber shells, ladyfinger firecrackers with no fuses, pipes, a homemade gun, a

clock, wristwatches and small hand tools. Collectively these items could very well

have appeared to a reasonable and well-trained officer like Officer Ford to be the

makings of a bomb or some other explosive device. Thus, he could reasonably

have deduced that the items were involved in the criminal activity leading to

Mr. Harris’s injury. Since there is no dispute as to the third part of the plain view

test, we conclude that Officer Ford lawfully seized the items found in Mr.

Harris’s home in plain view.

      Mr. Harris next argues that the district court “erred in failing to find that

Ford violated the Fourth Amendment by entering Harris’s home without

justification and also by re-entering the home for the sole purpose of gathering

evidence.” Appellant’s Op. Br. at 18. The district court characterized this issue

as “whether Ford’s re-entry negated his ability to seize the items under the plain

view doctrine. . . . [i]t appears that this discrete factual scenario has not been

addressed by the Tenth Circuit, or the Supreme Court.” Memorandum & Order at

14; R. Vol. 3 at 249. The court then went on to apply the second part of the

qualified immunity analysis—whether Officer Ford violated any right that was

clearly established at the time of the incidents in question. “For a right to be

                                          -13-
clearly established, there must be a Supreme Court or Tenth Circuit decision on

point, or the clearly established weight of authority from other courts must have

found the law to be as the plaintiff maintains.” Weise v. Casper, 593 F.3d 1163,

1167 (10th Cir. 2010) (internal alterations and quotations omitted). “The

qualified immunity doctrine does not require a case exactly on point. Clearly

established does not mean that an official action is protected by qualified

immunity unless the very action in question has previously been held unlawful,

but it is to say that in the light of pre-existing law the unlawfulness must be

apparent.” Id. (internal quotations omitted).

      It is telling that Mr. Harris cites no case in support of his claim that Officer

Ford violated a clearly established right when he exited and re-entered Mr.

Harris’s home to photograph items and seize them. 6 No other party cites a case

on point. We can find no such case either. Accordingly, we hold that there was

no clearly established right which Officer Ford violated in the conduct of the

search of Mr. Harris’s home on October 5. We turn now to the search on

October 6.




      6
       Indeed, Mr. Harris devotes only a page to this argument, and he simply
argues that the right to be free from warrantless searches is clearly established.
That does not satisfy the particularity requirement inherent in the qualified
immunity inquiry.

                                         -14-
      II. October 6 Search and Consent

      “Whether a defendant’s consent to search . . . was voluntary is a question

of fact, and the court considers the totality of the circumstances in making this

determination.” United States v. Carbajal-Iriarte, 586 F.3d 795, 799 (10th Cir.

2009). Furthermore, “[t]he government bears the burden of proof on this issue,

and ‘must show that there was no duress or coercion, express or implied, that the

consent was unequivocal and specific, and that it was freely and intelligently

given.’” Id. (quoting United States v. Soto, 988 F.2d 1548, 1557 (10th Cir.

1993)).

      Mr. Harris argues that the district court “erred in failing to find that the

defendants’ October 6 search violated the Fourth Amendment because it was

tainted by evidence acquired in the illegal search and because consent was not

voluntarily given.” Appellant’s Op. Br. at 19. Mr. Harris argues he was “not in a

mental state in which he was able to voluntarily give his consent.” Id. He

presents no support for this conclusory allegation, other than to assert that he

must have been on powerful pain medication because of his injured hand, and he

asks us to infer that he therefore lacked the ability to make a conscious and

voluntary decision. There is no objective evidence to support this claim, other

than conjecture. We therefore affirm the district court’s determination that

Mr. Harris gave a valid consent to the October 6 search of his residence.




                                         -15-
      Mr. Harris also argues “[t]here is a genuine issue of material fact about

whether the evidence that served as the basis for Plaintiff’s federal prosecution

was seized on the 5th or the 6th, which precludes summary judgment and defeats

the purported consent exception to the warrant requirement.” Id. at 20. In

particular, Mr. Harris argues there is inconsistency between the reports of Officer

Ford and Agent Tierney as to whether all of the relevant ammunition (.22 caliber

ammunition and shotgun shells) was seized on October 5 or October 6 or some

was seized on each day. 7 Because we have found nothing unlawful in the

warrantless search and seizure on the 5th or in the consensual search on the 6th,

this alleged inconsistency is irrelevant.

      In sum, we perceive no violation of Mr. Harris’s constitutional rights as a

result of the search and seizure of items from his house on October 5 and 6, 2005.

We accordingly affirm the district court’s grant of summary judgment to the

defendants.




      7
        Officer Ford’s report recorded no .22 caliber shells seized on the 5 th. He
testified that he must have “overlooked them,” and they were seized the next day.
Ford Dep. at p. 107; R. Vol. 3 at 144. Similarly, shotgun shells were reported to
have been seized on both days.

                                            -16-
                          CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the district court.

                                       ENTERED FOR THE COURT


                                       Stephen H. Anderson
                                       Circuit Judge




                                -17-
