Steve Ward, Individually and as Father and Next Friend of Tara Ward and Casey Ward, and Dawn Appenzeller, Individually and as Mother and Next Friend of Adam Appenzeller v. United States Customs Service, Twelve Unknown Agents
Docket: 92-2237
Court: Court of Appeals for the Tenth Circuit; February 27, 1994; Federal Appellate Court
Steve Ward and Dawn Appenzeller, representing themselves and their minor children, filed a lawsuit against the United States Customs Service and twelve unidentified agents, alleging violations of their constitutional rights due to a forcible entry into their home. The case is currently under interlocutory appeal in the Tenth Circuit, following the denial of the defendants' Motion for Summary Judgment, which was based on claims of qualified immunity and the assertion that no material facts warranted relief.
Key issues on appeal include the use of force during the agents' entry and the validity of the affidavits supporting the warrants for property seizure and search. The incident occurred at approximately 6:30 a.m. on March 20, following a night of surveillance of the plaintiffs' residence. Steve Ward was at work during the raid, and both he and Appenzeller noted that law enforcement had been monitoring their home prior to the event, a point not disputed by the defense.
The authorities were aware that the occupants were renters, as indicated in the affidavits. The entry was executed by a team of twelve agents, led by Agent Frost, who detailed their preparation for the operation, including wearing military-style uniforms, balaclavas, goggles, and carrying semi-automatic handguns and shotguns, with the intent to use noise-flash diversionary devices if necessary.
On March 20, 1991, at approximately 6:17 a.m., federal agents executed a search warrant at 501 South Mesquite Street, securing all exit points before forcibly entering the residence ten seconds after announcing their identity and intent. Inside, they found Dawn Appenzeller and three small children. Agent Frost's affidavit noted that Appenzeller was instructed to sit with the children while agents secured the house, after which the search for evidence commenced. Appenzeller later stated that she and the children were asleep at the time of the entry and were unaware that the armed individuals were law enforcement. She also reported having observed unknown individuals surveilling the house the previous night.
The plaintiffs argued that the entry violated established legal standards, noting that there was no emergency justifying the forced entry, and that an alternative—leaving the warrant at the premises—existed. They contended that while the warrant allowed for entry, the manner of entry constituted a constitutional violation. The government’s reliance on the seizure warrant was deemed inappropriate, as the probable cause for entry was not sufficiently supported by the warrant. The affidavit indicated that the agents' actions, including the display of force and the waiting period before entry, did not meet the legal benchmarks set by precedent cases like Bivens v. Six Unknown Named Agents and Anderson v. Creighton, which assess the reasonableness of law enforcement actions. The overall operation was described as well-planned and adequately staffed, but the legality of the entry itself was challenged based on the details provided.
Officers had prior knowledge of the occupants of the house and lacked credible information suggesting Steve Ward would be present or pose any threat, as he had no prior record of wrongdoing. The primary affidavit from Agent Frost focused on the seizure of real estate linked to James Mackovich, who faced drug charges and was under investigation, including a telephone tap. Ward was mentioned only once in relation to renting the house for marijuana sales, with no specifics provided about the usage of the house or any surveillance conducted.
Agent Frost's claims about Ward being violent were contradicted by Sheriff Jack Childress, who stated he had no knowledge of Ward or his temperament. There was no documentation of the telephone taps or relevant observations from surveillance in the warrant affidavit. The operation involved a forced entry and search for evidence leading to further seizures, despite the known ownership of the property and the identity of the tenant.
The seizure warrant allowed entry as necessary, with instructions to leave a copy of the warrant if practical; this was disregarded by the twelve agents who forcibly entered. The search warrant mentioned evidence related to controlled substances but no search warrant was explicitly requested, although one was issued without a documented return. The record indicates a significant number of material facts in dispute, supporting the denial of summary judgment, and the defendants did not establish qualified immunity.
The future of real property seizures under 21 U.S.C. Sec. 881 has been established by the U.S. Supreme Court in United States v. James Daniel Good Real Property. In this interlocutory appeal, the Government attorneys for the Defendants request the court to dismiss the case due to lack of personal jurisdiction over the agents, following the trial court's denial of the Defendants' Motion for Summary Judgment, which did not provide reasons for its denial. The Defendants appealed under 28 U.S.C. Sec. 1291, citing the absence of material facts and the qualified immunity of the agents, while consistently asserting a lack of personal jurisdiction.
The record for this appeal includes pleadings, affidavits for the warrants, and the Motion, but does not address jurisdictional issues adequately. Various matters, such as the Defendants' failure to respond to interrogatories and questions about personal service requirements, have arisen but were not resolved in the trial court. The appeal lacks sufficient evidence to address these jurisdictional concerns, making them not properly before the appellate court. Citing relevant case law, the appellate court affirms the trial court's denial of the Motion for Summary Judgment, concluding that the issues raised by the Defendants do not meet the necessary criteria for appeal.
