Jon Luer; Andrea Steinebach v. Michael Clinton; Benjamin Selz

United States Court of Appeals
For the Eighth Circuit
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No. 18-3512
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Jon Luer; Andrea Steinebach
lllllllllllllllllllllPlaintiffs - Appellees
v.
Michael Clinton; Benjamin Selz
lllllllllllllllllllllDefendants - Appellants
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 25, 2019
Filed: February 16, 2021
[Published]
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Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
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PER CURIAM.
Husband Jon Luer and wife Andrea Steinebach sued St. Louis County police
officers Michael Clinton and Benjamin Selz after Luer found the officers, guns
drawn, searching their home without a warrant at 3:00 a.m. Ruling on cross motions
for summary judgment, the district court denied the officers qualified immunity and
granted Luer and Steinebach partial summary judgment on their claims that the

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officers unlawfully entered and searched their home and its curtilage, concluding the
circumstances were insufficient to create an exception to the Fourth Amendment’s
warrant requirement. The officers timely appealed. We have jurisdiction over the
denial of their claims of qualified immunity under the collateral order doctrine and
the grant of partial summary judgment when it raises the same Fourth Amendment
issues. Sherbrooke v. City of Pelican Rapids, 513 F.3d 809, 813 (8th Cir. 2008). We
conclude the officers are entitled to qualified immunity for some but not all their
actions on the night in question. Therefore, we affirm in part, reverse in part, and
remand for further proceedings not inconsistent with this opinion.
I.
In the early hours of a Sunday morning, a drunk man took a taxi from
downtown St. Louis to Luer and Steinebach’s neighborhood in Ballwin, Missouri.
The taxi stopped on the street near their house. The intoxicated rider exited the taxi
explaining that he needed to fetch some money. He never returned. When the taxi
driver realized he had been stiffed on the $65 fare, he called police at 2:38 a.m.
The officers arrived at 2:45 a.m. The driver told Officer Clinton that “a white
male wearing a white hat in his mid 30s” ran off and pointed in a general direction
away from Luer and Steinebach’s home. Clinton Dep., D. Ct. Dkt. 67–4 at 50:14–23.
Officer Clinton immediately went in that direction -- between the house adjacent to
Luer and Steinebach’s house and the house two doors down. He passed between the
houses and checked both backyards. Using a flashlight, he searched “[u]nderneath
the back porch of the neighbor’s residence,” around the air conditioning unit, and
behind trees and shrubs where someone could hide. Id. at 54:9–56:1. Officer Clinton
found no sign of the fare skipper and crossed back across the neighbor’s yard, entered
Luer and Steinebach’s backyard, and then proceeded onto a private garden pathway
on the side of their home that connected to the driveway. When on the pathway,
Officer Clinton noticed a side entry to the attached garage was not fully secured: it
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is disputed whether the transparent outer storm door was closed or slightly ajar; the
door leading into the garage was open. This doorway is not visible from the street.
At that point, Officer Selz joined Officer Clinton and they approached Luer and
Steinebach’s front door. They knocked on the door and windows and rang the
doorbell. The house remained quiet, so the officers walked around the house to the
backyard patio and knocked on the sliding glass door. Receiving no response, the
Officers returned to the side garage entrance. At 2:55 a.m., they told dispatch to hold
the channel because they saw an open door behind the storm door and then entered
the garage. Once inside the garage, the officers discovered that the door leading into
the kitchen from the garage was open two to four inches. They fully opened it and
entered the house with their guns drawn. The officers headed toward a light coming
from the basement, but returned to the main level after encountering a locked door.
They continued searching the home until they encountered Luer, partially dressed,
outside his bedroom.
Luer identified himself as the homeowner and said that his wife, Steinebach,
and step-son were home. The officers asked about his step-son, who then joined them
in the hallway. The three dressed and went outside where the taxi driver identified
the step-son as the fare skipper. Luer consented to a search of his step-son’s bedroom
to look for a white hat. The officers did not find a hat, and a sobriety test indicated
that Luer’s step-son was not intoxicated. After the officers decided that he was not
the suspect, they left. This lawsuit followed.
II.
We review the grant or denial of summary judgment de novo. Zubrod v. Hoch,
907 F.3d 568, 575 (8th Cir. 2018). Summary judgment is proper if “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The officers do not claim there are disputed
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material facts that prevent partial summary judgment for Luer and Steinebach, only
that they are entitled to qualified immunity as a matter of law.
Qualified immunity protects officers from civil damages “so long as their
conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Mullenix v. Luna, 577 U.S. 7, 11 (2015)
(per curiam) (citation omitted). To succeed, Luer and Steinebach must show that
officers Clinton and Selz violated a constitutional right that was “clearly established”
at the time of their alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232
(2009). “To be clearly established, a legal principle must have a sufficiently clear
foundation in then-existing precedent” so that “every reasonable official would
understand what he is doing is unlawful.” Dist. of Columbia v. Wesby, 138 S. Ct.
577, 589-90 (2018) (cleaned up). Existing precedent must place the unlawfulness of
the police officer conduct at issue “beyond debate.” Id. at 590 (quotation omitted);
see White v. Pauly, 137 S. Ct. 548, 551 (2017).
The Fourth Amendment protects the right of the people “to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
“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.” Kyllo
v. United States, 533 U.S. 27, 31 (2001). “Absent exigent circumstances, that
threshold may not reasonably be crossed without a warrant.” Payton v. New York,
445 U.S. 573, 590 (1980). The area “immediately surrounding and associated with
the home -- what our cases call the curtilage – is part of the home itself for Fourth
Amendment purposes.” Florida v. Jardines, 569 U.S. 1, 6 (2013) (citations omitted).
But a limited warrantless intrusion into the curtilage is not unreasonable when there
is a legitimate law enforcement objective “unconnected with a search directed against
the accused.” United States v. Robbins, 682 F.3d 1111, 1115 (8th Cir. 2012)
(quotation omitted), cert. denied, 569 U.S. 905 (2013).
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Because the ultimate Fourth Amendment touchstone is reasonableness, the
warrant requirement is subject to certain exceptions. See Brigham City, Utah v.
Stuart, 547 U.S. 398, 403 (2006). The district court considered three well-established
exigent circumstances in concluding Officers Clinton and Selz violated the Fourth
Amendment -- when police provide “emergency assistance to an injured occupant,”
are “in hot pursuit of a fleeing suspect,” or “need to prevent the imminent destruction
of evidence.” Kentucky v. King, 563 U.S. 452, 459 (2011). The court did not
consider another recognized exception to the warrant requirement -- the community
caretaker exception first announced in Cady v. Dombrowski, 413 U.S. 433 (1973).
“Our circuit has recognized, under the ‘community caretaker’ classification, that
noninvestigatory searches and seizures may be justified in certain limited situations.”
United States v. Harris, 747 F.3d 1013, 1017 (8th Cir.) (citations omitted), cert.
denied, 574 U.S. 910 (2014).1
“Actions within [the] heartland of the community caretaker exception includes
those taken to . . . provide an infinite variety of services to preserve and protect
community safety.” Castagna v. Jean, 955 F.3d 211, 221 (1st Cir.) (quotation
omitted), cert. denied, 2020 WL 7132271 (Dec. 7, 2020). They “rang[e] from helping
little children to cross busy streets to navigating the sometimes stormy seas of
neighborhood disturbances.” Caniglia v. Strom, 953 F.3d 112, 118 (1st Cir.), cert.
granted, No. 20-157, 2020 WL 6811250 (Nov. 20, 2020). For example, the
community caretaking exception has been applied when police officers reasonably
1Although the phrase “community caretaking” first appears in the reply brief
on appeal, the opening brief cites Mincey v. Arizona, 437 U.S. 385, 392 (1978), and
refers to the law enforcement function of protecting occupants of a home from
imminent injury. This court has cited that aspect of Mincey as an example of the
community caretaking function, see United States v. Quezada, 448 F.3d 1005, 1007
(8th Cir. 2006), and we conclude that the issue is fairly presented. See also
MacDonald v. Town of Eastham, 745 F.3d 8, 13 (1st Cir. 2014) (observing that
“courts do not always draw fine lines between the community caretaking exception
and other exceptions to the warrant requirement”).
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entered a home to abate a nuisance, such as loud music creating a late night
disturbance of the peace. See United States v. Rohrig, 98 F.3d 1506, 1520-22 (6th
Cir. 1996). An officer’s warrantless intrusion into the home or curtilage must be
“limited in scope to the extent necessary to carry out the caretaking function.” South
Dakota v. Opperman, 428 U.S. 364, 375 (1976). “The fact that the protection of the
public might, in the abstract, have been accomplished by ‘less intrusive’ means does
not, by itself, render the search unreasonable.” Cady, 413 at 448.2
Clinton and Selz first entered the curtilage and then the home of Luer and
Steinebach. We begin with the curtilage issue. Unfortunately, the parties and the
district court have not defined the parameters of this curtilage. It obviously included
the attached garage. The parties seem to assume, not unreasonably,3 that it also
included Luer and Steinebach’s back yard, the sliding glass door on the backyard
patio, and the pathway and driveway leading from the back yard to the street
alongside the neighboring residence. Because these areas present different Fourth
Amendment issues than the subsequent entry into the Luer-Steinebach home, we
begin our analysis with the first action Officer Clinton took after talking to the cab
driver -- he walked where the cab driver said the fare-skipper fled, between the house
adjacent to Luer and Steinebach’s and the house two doors down, and then checked
the neighbor’s backyard and porch with a flashlight. Did this action violate the
neighbor’s Fourth Amendment expectation of privacy in his or her curtilage?
2Cady and Opperman applied the community caretaking exception to searches
of vehicles, where Fourth Amendment protections are more limited. Like most
circuits, we have extended the exception to entry into a residence or curtilage “when
the officer has a reasonable belief that an emergency exists requiring his or her
attention.” Burke v. Sullivan, 677 F.3d 367, 371 (8th Cir. 2012) (quotation omitted);
see United States v. Smith, 820 F.3d 356, 362 (8th Cir. 2016).
3See United States v. Wells, 648 F.3d 671, 676-79 (8th Cir. 2011), noting that
whether the curtilage determination is reviewed de novo or for clear error is in doubt
in this circuit.
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The Supreme Court has not addressed a curtilage issue in similar
circumstances. Officer Clinton was looking for a thief; he arguably had reasonable
suspicion justifying a Terry stop and brief questioning. But given the passage of time
since the fare-skipper fled from the cab driver, Clinton was not in “immediate or
continuous pursuit” of a suspect that justifies warrantless entry into a home under the
“hot pursuit” class of exigent circumstances. See Welsh v. Wisconsin, 466 U.S. 740,
753 (1984). On the other hand, Clinton did not enter the neighbor’s home, only its
curtilage, and he made only a limited search of outdoor places where the thief might
be hiding, not a search inside the home from the vantage point of its curtilage. Doing
a “sweep” of the area where the cab driver said an intoxicated thief had fled was
arguably a reasonable exercise of Clinton’s community caretaker function “to
preserve and protect community safety.”4 Clinton and later Selz were in part
motivated by their duty to investigate a reported petty theft, but “mixed motives will
not defeat” their entitlement to the community caretaker exception. Castagna, 955
F.3d at 222. For example, had the cab driver been paid and then called the police to
ensure that his inebriated passenger got home safely without disturbing the
neighborhood, the officers would no doubt have taken the same actions to preserve
and protect community peace and quiet, the surrounding residential properties, and
the passenger’s safety.
To posit what may be a more common situation, suppose a nearby resident had
called 911 to report that a prowler in the neighbor’s walkway and back yard was
4Focusing only on the typical use of the term protective sweep -- “as an adjunct
to the serious step of taking a person into custody for the purposes of prosecuting him
for a crime,” Maryland v. Buie, 494 U.S. 325, 333 (1990) -- the district court rejected
the officers’ contention that they made a constitutionally valid protective sweep
because no arrest occurred on the night at issue. But this was not a protective sweep
incident to an arrest or Terry stop. It was a protective sweep of a neighborhood for
complained-of community hazards, not unlike an inspection for outdoor property
hazards.
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acting like he might be about to burgle the premises. Officer Clinton is dispatched
and does the same investigation, but when he shines his flashlight under the
neighbor’s back porch, he sees drug and firearm contraband in plain view. Given the
dearth of precedent addressing this curtilage issue, we think Clinton would deserve
qualified immunity if the neighbor then brought a § 1983 damage action. See
MacDonald, 745 F.3d at 13-15. As the Ninth Circuit said in United States v.
Struckman, “the fact that the police officers went to the house in response to Ms.
Grime’s 911 report to look around the area and, perhaps, ask questions was consistent
with what citizens expect from law enforcement -- efforts to assure that they and their
property are safe from unlawful, injurious acts by others.” 603 F.3d 731, 741 (9th
Cir. 2010); see generally 3 Wayne R. LaFave, Search and Seizure § 6.6(c) (6th ed.
2020). Citizens also may expect law enforcement to enter curtilage under limited
circumstances to protect persons or property.
Officer Clinton did not end his sweep with the neighbor’s property. He did not
find the fare-skipper after looking for two-minutes in the neighbor’s walkway, back
yard, and under the back porch. He then looked briefly in Luer and Steinebach’s
neighboring back yard and walked down their pathway and driveway that ran along
the other side of the neighbor’s residence to the street. In our view, the community
caretaker purpose that made his entry into the neighbor’s walkway and backyard
objectively reasonable likewise applies to this extension of his sweep to the exterior
curtilage of the immediately adjacent residence. The community caretaker exception
does not apply where a “law enforcement officer physically intrudes on the curtilage
to gather evidence” of a crime. Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018)
(emphasis added). But here, the entry into their curtilage was entirely
noninvestigative as to Luer and Steinebach.
At this point, the incident acquired a much different focus. Officer Clinton
testified that when he walked down the flagstone path and approached the Luer-
Steinebach driveway, he saw that the inner door into their attached garage -- a
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doorway not visible from the street -- was open, an unusual and ominous condition
at 3:00 a.m. that suggested the fare-skipper may be hiding in the garage. Officer Selz
joined Clinton, and the two officers knocked on the front door and windows, rang the
doorbell, walked around the house to the back patio, and knocked on the sliding glass
door. Receiving no response, they went back to the open door and entered the garage,
the last portion of curtilage at issue, where they found no hiding fare-skipper.
Though a closer question, we conclude that this, too, was arguably a reasonable
exercise of their community caretaker function. The officers had reason to believe
an intoxicated thief was in the vicinity, and an open garage door was a likely place
where he could enter and perhaps damage property. As the Sixth Circuit observed in
Taylor v. Michigan Department of Natural Resources, “this was a situation where a
common sense assessment would be that a legitimate owner, could that person have
been contacted, would want the officers to investigate the possible break in, which
tips us in the direction of finding the officer’s actions reasonable.” 502 F.3d 452,
457-58 (6th Cir. 2007) (cleaned up). Given the dearth of relevant prior judicial
authority, we conclude the officers are entitled to qualified immunity for their entry
into this area of the curtilage as well. See Castagna, 955 F.3d at 224 (“[T]he officers
could not have been on notice that their actions would clearly violate the
[homeowners’] constitutional rights.”).
That brings us to the most consequential actions at issue: the officers’ entry
into and extensive search of the Luer-Steinebach home, ending with a frightening
confrontation with the awakened family. The officers found no one in the attached
garage but observed that the door from the garage into the kitchen of the home was
ajar. They knocked, announced police, entered the kitchen with guns drawn, and
made “loud verbal commands” that anyone in the house “make themselves known.”
Up to this point, we conclude that the officers are entitled to qualified immunity
under the community caretaker exception because an open door into a home late at
night, when no one had responded to their repeated knocking at the outside doors,
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arguably warranted a limited protective entry. However, even if their intrusions to
this point were justified, we must assess whether they sufficiently tailored their
subsequent activity to this limited purpose. See Smith, 820 F.3d at 362; United States
v. Goldenstein, 456 F.2d 1006, 1010 (8th Cir. 1972).
No one responded to the officers’ repeated announcing at the kitchen door
threshold. From there, they saw a light emanating from an open door to the basement.
They descended to the basement, found no signs of disturbance, returned to the main
level, and continued searching the entire home until encountering Luer outside his
bedroom. We conclude the community caretaker exception cannot justify this severe,
warrantless intrusion into a home. In searching two yards, underneath a deck, behind
an air conditioning vent, and in the Luer-Steinebach attached garage, Officer Clinton
observed no sign of the intoxicated fare-skipper. The officers had no information the
suspect was armed or otherwise dangerous. They got no response from inside the
Luer-Steinebach home and saw no signs of criminal activity. The cab driver reported
that a petty thief had run, not that a burglar was on the prowl in a residential
neighborhood. Reasonable police officers acting as community caretakers should
have left the home.
Whether the community caretaker exception extends to entries into the home
is not a resolved Fourth Amendment question, as the recent grant of certiorari in the
First Circuit’s Caniglia decision demonstrates. The First Circuit recognized that the
need to limit the extent of this exception “is especially pronounced in cases involving
warrantless entries into the home. . . . [P]olice officers must have ‘solid,
noninvestigatory reasons’ for engaging in community caretaking activities.”
Caniglia, 953 F.3d at 126 (quotation omitted).
The other “exigent circumstance” exceptions to the Fourth Amendment warrant
requirement do not apply in these circumstances. The officers were not in “hot
pursuit” of the intoxicated fare-skipper, and they had no information suggesting that
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he was armed and dangerous. The officers argue that, because of the open doors, they
had a “reasonable belief that the occupants of the [home] may be under a threat to
their safety.” Of course, there may be a threat to safety in almost any situation.
However, it is clearly established that “[s]omething more than a speculative hunch is
needed for police to conduct a protective sweep.” United States v. Anderson, 688
F.3d 339, 346 (8th Cir. 2012), cert. denied, 568 U.S. 1182 (2013). Nor did the
officers have information suggesting that anyone in the home was in need of
emergency assistance. Had they confronted a person dressed as the cab driver
described the fare-skipper in a place where the officers were entitled to be, they may
well have had reasonable suspicion to stop and question the person and perhaps take
him a short distance to see if the cab driver would identify him as the fare-skipper.
But they were not entitled to enter and conduct an extensive search of the Luer-
Steinebach home for this purpose without a warrant or consent. “[A]pplication of the
exigent-circumstances exception in the context of a home entry should rarely be
sanctioned when there is probable cause to believe that only a minor offense . . . has
been committed.” Welsh, 466 U.S. at 753.
Our factually most similar prior decision is United States v. Selberg, 630 F.2d
1292 (8th Cir. 1980). Selberg asked a neighbor to watch his mobile home for
suspicious activity because of recent thefts and vandalism. Selberg left his front door
open one day with the aluminum storm door closed. When the door was still open the
next morning, the neighbor’s wife called the police. Officer Ham responded. She
explained the situation and asked him to check Selberg’s home. Ham knocked and
identified himself at Selberg’s front door. Hearing no response, he entered the home
without a warrant, immediately seeing a handgun on the living room floor. He then
knocked on a closed door adjacent to the living room, entered when there was no
response, and found an unregistered sawed-off rifle on a bedroom floor. Charged
with possession of the second gun, Selberg moved to suppress. The district court
denied the motion but our divided panel reversed, concluding (i) the neighbor’s wife,
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a third party, did not have common authority or control to consent to the entry, and
(ii) exigent circumstances did not justify the warrantless entry because:
Even if it might be said that these circumstances justified entry to
determine whether there was any disturbance, they do not justify
intrusions into areas behind closed doors, where the apparent
expectation of privacy would be higher than in the area immediately
inside the front door which Selberg had left open. A cursory look at the
living room and kitchen could have satisfied the officer that there was
no sign of disturbance and eliminated any fear there was an emergency
threat to Selberg’s property.
Id. at 1296. Here, as in Selberg, Officers Clinton and Selz encountered no signs of
disturbance outside the Luer-Steinebach home or in their attached garage. Nothing
suggesting imminent danger to persons or property was visible from the kitchen door
threshold. Although Selberg did not use the phrase “community caretaking,” the
opinion in substance addressed whether an interest in community caretaking -- that
is, protection of persons or property -- justified the entry, id. at 1295, and the case is
nearly on point factually. Considering Selberg together with the Supreme Court’s
frequent cautions that exigent circumstances rarely justify a warrantless home
intrusion, we conclude that it was clearly established by controlling Fourth
Amendment precedents that the officers’ full blown search of the entire Luer-
Steinebach domicile without a warrant was objectively unreasonable.
For the foregoing reasons, the judgment of the district court is reversed in part
and the case is remanded for further proceedings not inconsistent with this opinion.
KOBES, Circuit Judge, concurring in part and dissenting in part.
The majority wrestles with the outer limits of community caretaking. Those
are hard questions—but they are questions we need not answer. Community
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caretaking was not raised in the district court and was only discussed here in a reply
brief. It was waived. See Eagle Tech. v. Expander Americas, Inc., 783 F.3d 1131,
1138 (8th Cir. 2015) (citation omitted) (“It is well settled that we will not consider
an argument raised for the first time on appeal.”); United States ex rel. Ambrosecchia
v. Paddock Labs., LLC, 855 F.3d 949, 954 (8th Cir. 2017) (“[c]laims not raised in an
opening brief are deemed waived”) (citation omitted).
Even if the exception was properly raised, no facts support a reasonable belief
that the officers needed to enter Luer and Steinebach’s property to protect community
safety. The cab driver told Officers Clinton and Selz that the fare skipper walked
away from Luer and Steinebach’s home, and the officers “had no information the
suspect was armed or otherwise dangerous.” Maj. Op. 10. The cab driver reported
only “that a petty thief had run, not that a burglar was on the prowl in a residential
neighborhood.” Id. On these undisputed facts, I do not think this is one of the
“certain limited situations” where community caretaking justifies “a noninvestigatory
search[].” United States v. Harris, 747 F.3d 1013, 1017 (8th Cir.), cert. denied, 574
U.S. 910 (2014).
Officers Clinton and Selz raised only two exigent circumstances—hot pursuit
and emergency aid. The majority correctly rejects both arguments, and I would affirm
on those grounds. To the extent the majority’s opinion grants immunity to the
officers, I respectfully dissent.
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