DeHerrera v. Kozak

                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                       October 14, 2020
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court

       Plaintiff - Appellant,

 v.                                                         No. 19-8066
                                                  (D.C. No. 2:19-CV-00111-SWS)
 OFFICER JIM EDDY, in his individual                         (D. Wyo.)
 SOLBERG, in his individual capacity,

       Defendants - Appellees,


 BRIAN KOZAK, individually and in his
 official capacity as Chief of Police;
 OFFICER JIM EDDY, in his official
 SOLBERG, in his official capacity;
 STEVE PALSO, an individual; LIPSEY
 authorized Sprint Retailer, DBA
 Connectivity Source; CCT WIRELESS,
 INC., an authorized Sprint Retailer;


                                ORDER AND JUDGMENT*

        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral

Before HARTZ, McHUGH, and EID, Circuit Judges.

      Plaintiff Maria Isela DeHerrera appeals the district-court order dismissing

under Fed. R. Civ. P. 12(b)(6) her 42 U.S.C. § 1983 claims against Officer Jim Eddy

and Sergeant Matthew Solberg in their individual capacities for violation of her rights

under the Fourth Amendment.1 Exercising jurisdiction under 28 U.S.C. § 1291, we


                                    I. Background

      Because the district court resolved the case under Rule 12(b)(6), we take the

facts from Plaintiff’s complaint, accepting as true all well-pleaded nonconclusory

factual allegations. See Ashcroft v. Iqbal, 

556 U.S. 662

, 678–79 (2009). We also

consider two additional documents—a police report and a witness statement. They

were relied on by the district court because their authenticity is not challenged and

they are referred to in the complaint and central to the claim. See Gee v. Pacheco,

627 F.3d 1178

, 1186 (10th Cir. 2010) (noting propriety of the use of such documents

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 originally brought additional claims against Officer Eddy and
Sergeant Solberg in their individual and official capacities and various claims against
the other above-named defendants. On this appeal she does not challenge the
disposition of those claims, so we do not address them. See Burke v. Regalado,

935 F.3d 960

, 1014 (10th Cir. 2019) (“Issues not raised in the opening brief are
deemed abandoned or waived.” (internal quotation marks omitted)).

in resolving motion under Rule 12(b)(6)). Moreover, on appeal neither party

challenges the district court’s reliance on them.

      Thus, we assume the truth of the following relevant facts: Using an online

platform and identifying herself as “Isela Maria,” Plaintiff sold what she described as

a working Sprint iPhone for $400. The woman who purchased the phone (the

purchaser) took it to a Sprint store to have it activated. Before activating a phone for

a new owner, a Sprint employee manually enters the phone’s International Mobile

Equipment Identity (IMEI) number into a Sprint computer program—“a diagnostic

tool, called the Sprint Network Analysis, foreign device management program” that

“enable[s] employees . . . to determine . . . whether a particular phone is eligible for

activation.” Aplt. App. at 22, ¶ 70 (internal quotation marks omitted). A store

employee entered what he thought was the phone’s IMEI number into the diagnostic

program, and the program flagged the phone as a “locked insurance claim phone.”

Id. at 10, ¶ 6

(internal quotation marks omitted). The program’s response led the

employee to believe Plaintiff “had committed a fraud.”

Id. at 23, ¶ 77.


purchaser contacted Plaintiff, who denied wrongdoing. The purchaser then called the

Cheyenne, Wyoming police department.

      Officer Eddy responded to a call from the store, where the purchaser and

employee reported their understanding that the phone was a “locked insurance claim

phone” ineligible for activation.

Id. at 10, ¶ 6

(internal quotation marks omitted).

Officer Eddy took no immediate action.

      Later that day, Plaintiff called the store. She initially told the employee she

had a Sprint account but when asked for her account number, she admitted she had

never been a Sprint customer. The employee later sent Officer Eddy a written

statement reporting Plaintiff’s inconsistent statements about whether she was a Sprint

customer and providing a screenshot of the diagnostic program result. The

screenshot showed an IMEI number that had 13, not 15, digits. Officer Eddy logged

the phone into evidence, noting the 15-digit IMEI number.

      Officer Eddy attempted to contact Plaintiff using the phone number the

purchaser had provided for her, but she did not answer. Because she did not use her

full name when she listed the phone for sale, Officer Eddy did not yet know her

identity. At his request another officer posted information about her on the

department’s Facebook page, identifying her as a suspect and asking for help locating

her. Soon thereafter, she called the department, identified herself, and told the

officer with whom she spoke (Officer Womack) that she had had an account with

Sprint, had made an insurance claim for a damaged phone, cancelled her account with

Sprint, and sometime later sold the replacement phone. The department then took

down the Facebook post.

      Plaintiff later went to the police station, but she did not have an appointment

and Officer Eddy was unavailable. When Sergeant Solberg called her that evening to

address her concerns about the Facebook posting, she told him she was innocent and

that she had a receipt from when she purchased the phone. He told her to return the

purchaser’s money and, according to Plaintiff, said he did not care about the receipt.

      Officer Eddy recommended to prosecutors that Plaintiff be charged with the

misdemeanor offense of obtaining property by false pretenses. She was then

arrested, charged, and held in jail for two days.

      At the suggestion of her criminal-defense attorney, Plaintiff took the box the

phone came in, which listed the phone’s IMEI number, to a Sprint store. The store

manager ran the number through the diagnostic program, which reported that the

phone could be activated. Plaintiff showed the manager the screenshots of the

previous diagnostic reports flagging the phone as a fraud, and he determined that the

system had produced inconsistent results because the store employee had omitted the

last two digits of the 15-digit IMEI number when he typed it into the program. Based

on that discovery, the charge was dismissed.

      Plaintiff then filed this suit claiming, as pertinent here, that she was arrested

because of an inadequate investigation by Officer Eddy and Sergeant Solberg, in

violation of her Fourth Amendment rights. They moved to dismiss the claims against

them in their individual capacities on the ground of qualified immunity. The district

court granted the motion.

                                    II. Discussion

      We review de novo the dismissal of a complaint under Rule 12(b)(6) for

failure to state a claim. See 

Gee, 627 F.3d at 1183

. We view all well-pleaded factual

allegations in the light most favorable to the plaintiff. See Acosta v. Jani-King of

Okla., Inc., 

905 F.3d 1156

, 1158 (10th Cir. 2018).

      Because Officer Eddy and Sergeant Solberg invoke the defense of qualified

immunity, Plaintiff must allege facts showing (1) that the defendants violated a

constitutional right and (2) that the right at issue was “clearly established at the time”

of her arrest. District of Columbia v. Wesby, 

138 S. Ct. 577

, 589 (2018) (internal

quotation marks omitted). The alleged constitutional violation in this case is the

officers’ failure to conduct a reasonable investigation before determining that there

was probable cause to arrest Plaintiff. “A police officer may not close her or his eyes

to facts that would help clarify the circumstances of an arrest. Reasonable avenues of

investigation must be pursued.” Cortez v. McCauley, 

478 F.3d 1108

, 1117 (10th Cir.

2007) (internal quotation marks omitted). But we keep in mind that the “touchstone

of the Fourth Amendment is reasonableness” and since “[t]o be reasonable is not to

be perfect,” “the Fourth Amendment allows for some mistakes on the part of” law

enforcement officers. Heien v. North Carolina, 

574 U.S. 54

, 60–61 (2014) (internal

quotation marks omitted). And the reasonableness of a police officer’s action “must

be judged from the perspective of a reasonable officer” at the time, not “with the

20/20 vision of hindsight.” Graham v. Connor, 

490 U.S. 386

, 396 (1989). Thus, an

arrest is not rendered constitutionally unreasonable simply because the arrestee

turned out not to be guilty. See

id. (explaining that “[t]he

Fourth Amendment is not

violated by an arrest based on probable cause, even though the wrong person is


      The clearly-established standard “requires a high degree of specificity”; the

legal principle must “clearly prohibit the officer’s conduct in the particular

circumstances before him.” 

Wesby, 138 S. Ct. at 590

(internal quotation marks

omitted). “[T]he specificity of the rule is especially important in the Fourth

Amendment context” because, “[g]iven its imprecise nature, officers will often find it

difficult to know how the general standard . . . applies in the precise situation


Id. (internal quotation marks

omitted). Thus, the plaintiff must

“identify a case where an officer acting under similar circumstances was held to have

violated the Fourth Amendment.”

Id. (ellipsis and internal

quotation marks omitted).

The case “must place the lawfulness of the particular arrest beyond debate.”

Id. (internal quotation marks


      We agree with the district court’s conclusion that Officer Eddy acted

reasonably. Nothing in the complaint or incorporated documents suggests any reason

to question the Sprint employee’s competence or trustworthiness. Thus, Officer

Eddy reasonably relied on the employee’s report that he entered the phone’s IMEI

number into the company’s computer program and that the program indicated that the

phone could not be activated and was likely fraudulent. It was also reasonable for

Officer Eddy to be suspicious of Plaintiff’s actions given that she made contradictory

statements to the employee about whether she had a Sprint account, told Officer

Womack that she had an account, and did not use her full name in her online posting

listing the phone for sale. Moreover, Plaintiff’s statement to Officer Womack that

she had made an insurance claim on a Sprint phone supported the store employee’s

conclusion that the phone was a “locked insurance claim phone.” Aplt. App. at 91

(internal quotation marks omitted).

      Like the district court, we reject Plaintiff’s argument that Officer Eddy

“fail[ed] to conduct an objectively reasonable investigation” because he did not

“contact [her to] get her side of the story,” Aplt. Br. at 17, and “failed to compare the

IMEI number of the phone sold by [her] to the information provided by the Sprint


id. at 16.

Contrary to her assertion that Officer Eddy did not attempt to

contact her, the complaint and incorporated documents establish that he tried to call

her “a couple of times,” Aplt. App. at 91, and he had “her side of the story,” Aplt. Br.

at 17, based on her statements to Sergeant Solberg and Officer Womack.

      With respect to Officer Eddy’s failure to compare the IMEI numbers, we agree

with the district court’s determination that his “mistake or oversight” in not noticing

the discrepancy was “not a purposeful attempt to turn a blind eye to readily-available

exculpatory evidence,” Aplt. App. at 117, and fell “well short of an unconstitutional

abandonment of his law enforcement duties,”

id. at 118.

With the benefit of

hindsight, it plainly would have been helpful for an officer to have compared the

numbers. But we do not think it was constitutionally unreasonable for the officers to

fail to double-check the work of someone with special expertise or resources who

would have no apparent motive to make a false accusation, and Plaintiff has pointed

to no precedent, much less clearly established law, requiring an officer to do so.

      Nor are we persuaded by Plaintiff’s argument that both defendants violated her

Fourth Amendment rights by “ignor[ing]” her statement to Sergeant Solberg that she

had a receipt for the phone, which she characterizes as “exculpatory evidence.” Aplt.

Br. at 17; see also

id. at 20-21.

A receipt for the original purchase of the phone

would not have been exculpatory—Plaintiff was not suspected of stealing the phone;

she was suspected of knowing it was inoperable when she sold it as a functional

phone. In any event, the cases she relies on as “clearly established law” do not

support her argument that defendants abandoned their investigative responsibilities

by not following up on the receipt. Unlike the officer in Baptiste v. J.C. Penney Co.,

Officer Eddy and Sergeant Solberg did not review and then ignore clearly

exculpatory evidence. See 

147 F.3d 1252

, 1259-60 (10th Cir. 1998) (concluding

officer who viewed and ignored exculpatory video evidence was not entitled to

qualified immunity). And unlike the officer in Maresca v. Bernalillo County,

804 F.3d 1301

(10th Cir. 2015), Officer Eddy and Sergeant Solberg did not generate

the incorrect information they relied on or ignore immediately available exculpatory

information. See

id. at 1311

(officer not entitled to qualified immunity for wrongful

arrest where she triggered the stolen-vehicle report that was the sole basis for the

arrest by mistyping the license-plate number into her computer, then ignored

information “already on the computer screen in front of her and from the dispatcher”

that revealed the disparity between the vehicle she stopped and the one on the

stolen-vehicle report).

      Under the totality of the circumstances, and judging defendants’ actions from

their perspective at the time of the investigation, see 

Graham, 490 U.S. at 396

, we

conclude that they did not violate the Fourth Amendment, certainly not clearly

established Fourth Amendment law. We therefore agree with the district court’s

conclusion that both defendants are entitled to qualified immunity.

                                  III. Conclusion

      The order dismissing Plaintiff’s individual-capacity claims against Officer

Eddy and Sergeant Solberg is affirmed.

                                          Entered for the Court

                                          Harris L Hartz
                                          Circuit Judge


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