Cuervo v. Sorenson, 2024 WL 3997268 (10th Cir. 2024)
Investigators in Mesa County, Colorado, suspected Patricia Cuervo was concealing a stolen Sno-Cat tracked vehicle (measuring 8 feet wide, 7.5 feet tall, and over 16 feet long) in her garage. They rang her doorbell, and one officer thought he saw someone inside the house. Nobody answered, though, so the investigators left and obtained a search warrant authorizing a search for the Sno-Cat.
Officers returned two hours later with a SWAT team. They fired chemical munitions into the house, breaching windows. When they entered the house, no one was home. The officers conducted a search of the house and left, leaving the home unsecure and contaminated by chemical weapons. Looters later damaged the home.
Cuervo sued. The trial court granted immunity to the officers and dismissed claims against the police department and sheriff’s office. Cuervo appealed and the appellate court reversed the grant of qualified immunity and reinstated Cuervo’s claims, converting the defendant officers’ motion for dismissal into a motion for summary judgment.
Get the Xiphos law enforcement legal update delivered to your inbox: SUBSCRIBE NOW!
First, the appellate court was troubled by the dynamic, no-knock entry. Based on the failure of anyone to answer the door and one officer’s belief he may have seen someone inside, the affidavit alleged a suspect was barricaded inside Cuervo’s house — which didn’t turn out to be true. The appellate court noted: “other than the unverified, nonspecific perception of one officer from two hours earlier, the officers lacked any evidence that a person occupied the residence — and officers wholly lacked any evidence of imminent danger.” The decision also noted “decades of jurisprudence clearly establishes that Defendants violated the Fourth Amendment by forcibly entering and destroying Plaintiff’s property without knocking and announcing because the record reflects no exigencies.”
Second, the court held “that the search warrant did not authorize Defendants’ search of the residence because the Sno-Cat could not have been in the residence — indeed, officers believed the Sno-Cat was in the garage, not in the residence.” The Sno-Cat, the court said, was closer to the size of a hippopotamus than a dead canary: “If officers are searching for a canary’s corpse, they can search a cupboard, but not a locket. If they are looking for an adolescent hippopotamus, they can search the living room or the garage but not the microwave oven” (United States v. Evans, 92 F.3d 540 (7th Cir.), cert. denied, 519 U.S. 1020 (1996)).
The court ruled the search warrant did not authorize the no-knock entry, as a Sno-Cat is closer in size to a hippopotamus than a canary, highlighting the unreasonable search and seizure of Cuervo’s home.
Similarly, “If you are looking for an adult elephant, searching for it in a chest of drawers is not reasonable” (Platteville Area Apartment Association v. City of Platteville, 179 F.3d 574 (7th Cir. 1999)). The principle this example illustrates is that a search for a given piece of evidence or contraband implies a limitation of the parts of the premises that may be searched. The general rule governing the extent of a warrant search allows officers to open any area or container that could possibly conceal the items particularly described and authorized for seizure by the warrant (United States v. Ross, 456 U.S. 798 (1982)).
Indubitably, there is more to this story and perhaps additional facts will be revealed when the case is returned to the trial court. Remember, at this point the court construes factual disagreements in favor of the party opposing summary judgment (the officers). We’ll see what happens.
