FILED

PUBLISH

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

May 12, 2011

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 10-1033

RONALD RICHARD CREIGHTON,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
(D.C. No. 06-CR-372-WDM-1)

Terry R. Miller, Davis Graham & Stubbs LLP (Jonathan W. Rauchway with him on
the brief), Denver, Colorado, for Defendant-Appellant.
Paul Farley, Assistant United States Attorney (John F. Walsh, United States
Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Ronald Creighton appeals the district courts denial of his motion
to suppress evidence obtained in three separate searches. In an ongoing effort to
support their drug habit, Defendant and his cohorts stole large quantities of personal
mail from apartment buildings and condominiums in the Denver, Colorado, metro

area. Defendant would use the information obtained to generate false identifications
and counterfeit checks on a computer. Defendant and his cohorts would then pass
those checks to local businesses. Over the eighteen month course of the scheme,
Defendant suffered four involuntary encounters with law enforcement officials, three
of which uncovered the evidentiary fruits at issue in this appeal.
A federal grand jury ultimately charged Defendant with criminal misconduct
related to theft and fraud in 16 counts of a 22-count indictment. Following a bench
trial, the district court found Defendant guilty on 13 counts and sentenced him to
164 months imprisonment. Relevant to this appeal, Defendant was convicted on
Counts 1, 18, and 19 of possessing stolen mail in violation of 18 U.S.C. 1708; on
Counts 2 and 20 of possessing counterfeiting implements in violation of 18 U.S.C.
1028(a)(5); on Count 3 of fraud in connection with identification documents in
violation of 18 U.S.C. 1028(a)(3); and on Count 5 of making, possessing, and
uttering counterfeit securities in violation of 18 U.S.C. 513(a). Counts 1, 2, 3, and
5 are based on evidence arising from Defendants arrest on March 8, 2005, outside
a Motel 6 in Greenwood Village, Colorado. Count 18 is based on evidence arising
from Defendants arrest on June 19, 2005, inside a Homestead Suites hotel room in
Glendale, Colorado. Counts 19 and 20 are based on evidence obtained as a result of
Defendants arrest on July 11, 2006, outside a residence located on Granby Way in
Aurora, Colorado. We consider Defendants challenge to each incident in turn,
reciting the applicable facts and legal standards only as relevant to our analyses.

Exercising jurisdiction under 28 U.S.C. 1291, we summarily affirm.

I.
Defendant first challenges the inventory search of his luggage which followed
his lawful arrest by officers of the Greenwood Village Police Department (GVPD)
outside a Motel 6 on March 8, 2005. Defendant claims the GVPDs inventory search
violated the Fourth Amendments reasonableness requirement because, contrary to
the district courts conclusion, the Government failed to produce evidence that the
search was sufficiently regulated. We review de novo the district courts conclusion,
based upon the undisputed state of the record, that the GVPDs inventory search of
Defendants luggage was sufficiently regulated, and thus consonant with the Fourth
Amendment. See United States v. Allen, 43 Fed. Appx. 363, 364 (10th Cir. 2002)
(reviewing the reasonableness of an inventory search de novo).
A.
In Florida v. Wells, 495 U.S. 1 (1990), the Supreme Court upheld the
suppression of evidence uncovered during a state troopers inventory search of a
vehicle where the highway patrol had no policy whatever with respect to the
opening of closed containers encountered during an inventory search. Id. at 45
(emphasis added). The Court held that absent such a policy, the instant search was
not sufficiently regulated to satisfy the Fourth Amendment. Id. at 5. The Court
explained that standard criteria or established routine must regulate the opening
of containers located during an inventory search because an inventory search must

not be a ruse for a general rummaging in order to discover incriminating evidence.

Id. at 4 (internal citation omitted) (emphasis added). Rather, an inventory search
should promote three administrative purposes:

the protection of the owners

property while it remains in police custody; the protection of the police against
claims or disputes over lost or stolen property; and the protection of the police from
potential danger. South Dakota v. Opperman, 428 U.S. 364, 369 (1976) (internal
citations omitted). To those ends, the Court in Wells, 495 U.S. at 4, set parameters
within which law enforcement might establish a legitimate inventory search policy:
.

A police officer may be allowed sufficient latitude to determine whether

a particular container should or should not be opened in light of the
nature of the search and characteristics of the container itself. Thus,
while policies of opening all containers or of opening no containers are
unquestionably permissible, it would be equally permissible, for
example, to allow the opening of closed containers whose contents
officers determine they are unable to ascertain from examining the
containers exteriors. The allowance of the exercise of judgment based
on concerns related to the purpose of an inventory search does not
violate the Fourth Amendment.
B.
In this case, the record amply supports the district courts conclusion that the

GVPDs inventory search of Defendants luggage was undertaken pursuant to

standard criteria or established routine, and thus sufficiently regulated so as to
serve the purposes of a legitimate inventory search. See id. at 45. Two officers
from the GVPD, Tracy Thompson and Mark Dean, first responded to a call regarding
possible property damage at the Motel 6. Both officers testified at the evidentiary

hearing on Defendants motion to suppress.

At that hearing, the Government

introduced into evidence as Exhibits 1 and 2 the GVPDs Standard Operating

Guidelines for Found Property and Vehicle Impounds. Both sets of guidelines
require an itemized inventory of all personal property coming into the GVPDs
possession. Record on Appeal (ROA), Addendum of Exhibits, Govt Exh. 1 & 2.
Officer Thompson explained that following the arrest of Defendant and one
of his cohorts, the two suspects luggage remained in the parking lot where they
earlier had placed it after summoning a cab:
I told Mr. Creighton and Mr. Jastremski, you know, we cant just leave
your stuff out here in the parking lot. They had no friends close by.
They didnt live close by. The hotel didnt want anything to do with
their property because they werent registered guests at the hotel. . . .
[The hotel] didnt want the responsibility or liability of taking custody
of all of that property. So I specifically explained to both of the
gentleman that I was going to take custody of all of their property,
document any valuables, make sure there wasnt any dangerous
implements or weapons, and book it into [GVPD] for safekeeping. I
even went as far as explaining, I believe that there may be additional
evidence in there about, you know, the fraudulent IDs, but Im merely
going to document your belongings so there is no false accusations of
theft or being inconsiderate towards their property.
ROA Vol. 4, Pt. 3, at 93. When asked whether such procedure was standard for the
GVPD, Officer Thompson responded: Absolutely sir. . . . [I]ts part of our past
practices. . . . [W]ere highly aware of the importance of documenting peoples
property. Id. at 94. Officer Thompson stated that several officers including himself
booked all of that property that was in that luggage, documenting everything there
was nearly 100 pieces of property that we documented. Id. at 97. When asked
5

[w]ould it be fair to say . . . that you initially took that property, under your
procedure for inventory integrity, and then you cataloged it and went through a list
of everything that was there, also according to the criteria for the Greenwood Village
police found property, Officer Thompson responded: Yes, sir. Id. at 9798; see
Wells, 495 U.S. at 4 (policy of opening all containers unquestionably permissible).
Officer Dean also testified the GVPDs standard operating procedure [was]
for us to make sure we document everything. ROA Vol. 4, Pt. 3, at 11516. When
asked [w]ould it be fair to say that this procedure that the [GVPD] has, as outlined
in Exhibits 1 and 2, is for the protection of the Greenwood Village officers, the
[GVPD], and, indeed, the person who would be the lawful owner of that property,
Officer Dean stated: Yes, sir. Id. at 116. We need not belabor the point. In view
of the preceding discussion, Defendants claim that the GVPDs inventory search of
his luggage following his arrest outside the Motel 6 on March 8, 2005, was not
sufficiently regulated to promote the three aforementioned administrative purposes,
but rather was merely a ruse for a general rummaging, is meritless. 1

The Government alternatively suggests that the evidence upon which

Defendants convictions under Counts 1, 2, 3, and 5 rest did not arise from the
inventory search. Rather, according to the Government, the evidentiary support for
Count 1 was located in a locked blue sentry safe for which a search warrant was
obtained after its lock inadvertently broke and contents accidentally spilled. See
ROA, Addendum of Exhibits, Govt Exh. 5, at 7. The evidentiary support for Count
2 was found in a laptop computer also searched pursuant to a warrant. See id. Govt
Exh. 4. The evidentiary support for Counts 3 and 5, meanwhile, was found not only
in the safe and computer, but also on Defendants person during a search incident to
his arrest. Because Defendants argument that the GVPDs inventory search of his
(continued...)
6

II.
Defendant next contests the Glendale Police Departments (GPD) warrantless
entry, on June 19, 2005, into a Homewood Suites hotel room where he had been
residing with the rooms registered occupant for the better part of a week. The
district court ruled Defendant lacked standing to challenge police officers entry
into the room, wherein they observed incriminating evidence in plain view, in turn
justifying Defendants arrest and a more extensive search. The court found that prior
to the entry, Defendant knew that management (1) had claimed the rent was overdue
and (2) had told the registered occupant to pay or vacate the premises. Based on
these findings, the court concluded Defendant had foregone any expectation of
privacy in the room that society would accept as reasonable. We review the district
courts findings for clear error and its conclusion, based on those findings, de novo.
See United States v. Johnson, 584 F.3d 995, 998 (10th Cir. 2009) (reviewing a
defendants standing to challenge a search). 2 The Defendant has the burden of
establishing his standing, or, in other words, a subjective expectation of privacy in

(...continued)
luggage violated the Fourth Amendment fails, however, we need not delve into
possible alternative grounds for affirming the district courts ruling.
2

As we explained in Johnson, 584 F.3d at 999 n.3, reference to standing in

a Fourth Amendment context is a misnomer because such standing is not
jurisdictional. Rather, the question of whether a defendant can show a violation of
his own Fourth Amendment rights is more properly placed within the purview of
substantive Fourth Amendment law than within that of standing. Id. (internal
quotations omitted).
7

the hotel room that society is prepared to recognize as reasonable. See United States
v. Poe, 556 F.3d 1113, 1121 (10th Cir. 2009).
A.
We assume for the sake of argument that an individual like Defendant who,
unbeknownst to management, shares a hotel space with a rooms registered occupant
to engage in criminal activity has an expectation of privacy in the room at least
commensurate with the registered occupants. But see United States v. Cooper,
203 F.3d 1279, 1285 n.3 (11th Cir. 2000) (suggesting an unregistered overnight
guest using a hotel room predominately to engage in narcotics trafficking lacked
standing to challenge a warrantless search of the room). Such expectation of privacy
generally ends, however, upon expiration of the rental period.3 In United States v.
Varnedore, 73 Fed. Appx. 356, 360 (10th Cir. 2003), we stated:
Although a motel guest does have a legitimate expectation of privacy
in his room, United States v. Gordon, 168 F.3d 1222, 122526 (10th
Cir. 1999), that expectation of privacy is lost when the rental period for
the room expires. United States v. Croft, 429 F.2d 884, 887 (10th Cir.
1970); . . . . Since after the rental period expires a guest has no right
of privacy, there can be no invasion thereof. Croft, 429 F.2d at 887.

We do not discount the possibility that a hotel guest may continue to have
a legitimate expectation of privacy in a room after the expiration of the rental period
expires if the facts establish a pattern or practice that would make such expectation
reasonable. See United States v. Owens, 782 F.2d 146, 149150 (10th Cir. 1986)
(registered occupant did not lose his expectation of privacy in a hotel room by
staying past the check-out time where he had previously done so without incident).
But no such pattern or practice appears to have justified Defendants continuing
occupancy of the Homewood Suites hotel room at the time of the GPDs entry on
June 19, 2005.
8

B.
Following an evidentiary hearing, the district court made findings which have
ample support in the record:
The evidence is that the parties had not paid the amount due. The
defendants exhibit does confirm that $181 and some odd cents was
unpaid [as of June 19, 2005]. The [responding] officer testified that the
operator of the Homestead Suites had called [the room] to complain and
given a deadline, and that the deadline had arrived, and she wanted
assistance [in collecting the rent]. And the defendants testimony
indicated that he was aware that there was a dispute, at least that some
amount was claimed to be due. And I find that the evidence presented
indicates that the person who had rented the room lost their right of
privacy, and the defendants right was derivative. . . .[I]ts certainly
reasonable for a guest of a tenant in a hotel to expect some privacy.
But this defendant had knowledge of the disputes. And I conclude that
the subjective intent to retain a privacy interest in these circumstances
would not be one that society is prepared to recognize . . . .
ROA Vol 4, Pt. 3, at 48.

At the evidentiary hearing, Defendant, despite his

testimony that he did not know the rent was overdue, brought to the attention of the
court and counsel a hotel invoice, entered of record, showing the amount due on the
room as of the morning of June 19, 2005, was $181.59. Id. at 2021; see ROA,
Addendum of Exhibits, Govt Exh. 17.
Further belying Defendants claim to ignorance is the trial testimony of
Tamara Wattenberg, the hotel manager. 4 Wattenberg testified she made numerous
4

In reviewing the denial of a motion to suppress, [w]e are permitted to

consider the evidence introduced at the suppression hearing, as well as any evidence
properly presented at trial, and we view all of the evidence in a light most favorable
to the ruling of the district court. United States v. Harris, 313 F.3d 1228, 1233
(continued...)
9

phone calls to the room to inquire about the rent due. But instead of speaking with
Myra Burton, the rooms registered occupant, she spoke to several different
people. ROA Vol 4, Pt. 6, at 450. It was the amount of people I had spoke to over
the phone that concerned me without speaking to Myra consistently. Id. at 452.
Wattenberg made a minimum of three calls to the room on June 18 to advise its
occupants that the rent was overdue. Id. My concern started to mount . . . when
they said they would bring in money the following morning for that night and the
following night. And every time I talked to them it was always I promise to pay, but
it was never paid. Id. at 450. The next morning, Wattenberg made two more calls
to the room before calling the GPD to assist her in collecting the rent. When
collection efforts proved unsuccessful, police officers began evicting the rooms
occupants around 10:00 a.m.
Myra Burtons trial testimony similarly cast serious doubt on Defendants
purported lack of knowledge about the situation. Burton stated that she, Defendant,
and two other men had arrived at the hotel around June 12. Inside the room,
Defendant was using a laptop to make checks and using the scanner to scan IDs and
print fake identification. Id. at 578. Burton testified that on June 18 management
had warned her and the three men to pay the rent or leave the room: They told us
the night before, the night before the police showed up that we had to pay them by

(...continued)
(10th Cir. 2002).
10

7:30 in the morning, . . . and if we failed to do that, we would have to vacate the
premises and we would be evicted. 5 Id. (emphasis added).
The district court properly declined to credit Defendants claim that he never
received reasonable notice of the impending eviction. The evidence reasonably
suggests that Defendant could not have remained unaware of the situation after
spending nearly a week in the same room engaging in a criminal enterprise with
Burton. Like the district court, we have no difficulty concluding, based on the state
of the record, that society would not extend recognition of Defendants expectation
of privacy in the Homewood Suites hotel room beyond that of Burtons. Burtons
reasonable expectation of privacy in the room ended no later than 10:00 a.m. on June
19, 2005. And so did Defendants.
III.
Lastly, Defendant contests, for alleged want of exigency, the Aurora Police
Departments (APD) warrantless seizure of his person on July 11, 2006, from a
residence on Granby Way. The district court held that because Defendant possessed
a firearm in a possibly volatile situation, exigent circumstances justified police
officers threat to send a police dog into the home unless Defendant promptly exited.

On cross examination, Burton acknowledged that she had been under the
influence of methamphetamine and the deadline for payment may have been later
than 7:30 a.m. ROA Vol. 4, Pt. 7, at 604. The first responding officer, Michelle
Folmar, testified that Wattenberg told her the deadline for payment was 10:00 a.m.
ROA Vol. 4, Pt. 3, at 28.
11

Subsequent to his timely exit, Defendant confessed to wrongdoing and consented to a

search that in turn provided further evidence of criminal misconduct. The existence
of exigent circumstances is a mixed question of law and fact which the Government
bears the burden of establishing. See United States v. Reeves, 524 F.3d 1161, 1169
(10th Cir. 2008). We review the district courts factual findings for clear error and
the ultimate question regarding the reasonableness of a warrantless seizure from a
residence de novo. See United States v. Najar, 451 F.3d 710, 717 (10th Cir. 2006)
(reviewing a warrantless entry based on exigent circumstances).
A.
In reviewing application of the exigent circumstances exception to the Fourth
Amendments warrant requirement, we evaluate the circumstances as they would
have appeared to prudent, cautious, and trained officers. Armijo ex rel. Armijo
Sanchez v. Peterson, 601 F.3d 1065, 1071 (10th Cir. 2010). We assess the propriety
of Defendants seizure based upon what the officers reasonably believed at that
time. It does not matter that, in retrospect, information provided to the officers
was wrong. Id. at 1072. Defendants seizure was reasonable under the Fourth
Amendment, regardless of the individual officers subjective motivations, as long as
the circumstances at the time of the seizure, viewed objectively, justified the
seizure. Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006) (emphasis and
internal quotations omitted).

Among the factors that may give rise to exigent

circumstances justifying a warrantless seizure from a residence are the immediate

12

need (1) to secure the personal safety of all in harms way, including the suspect,
(2) to impede the possibility of escape, and/or (3) to prevent destruction of evidence.
See Minnesota v. Olson, 495 U.S. 91, 100 (1990).
B.
Certain aspects of the lawfulness of the Granby Way search and seizure were
before us previously in United States v. Creighton, 277 Fed. Appx. 796 (10th Cir.
2008). There, we addressed the Governments appeal from the district courts partial
grant of Defendants initial motion to suppress. In that motion, Defendant suggested
the APD lacked any basis, including exigent circumstances, to detain him. See ROA
Vol. 1, Pt. 1, at 9192, 9596. The district court apparently ruled that exigent
circumstances justified the APDs threat to send in a trained police dog if Defendant
did not promptly exit the residence. See ROA Vol. 4, Pt. 8, at 99397. The court,
however, granted Defendants motion with respect to the Granby Way residence,
concluding the initial detention Terry stop was proper, but that Defendants arrest
and continued detention were not supported by probable cause and, thus, were in
violation of the Fourth Amendment. Creighton, 277 Fed. Appx. at 799. The
Government appealed. At the outset of our analysis we observed:
Although the use of the Terry paradigm is debatable, Creighton has not
challenged the district courts conclusion that his removal from the
residence and initial detention were appropriate. Instead, like the
Government, Creighton confines his arguments to the issue of whether
the officers had probable cause to arrest and detain him once the initial
Terry investigation ended.

13

Id.. We held Defendants arrest and detention were valid, and reversed the district
courts suppression of the evidence.
Having lost on appeal, Defendant unsuccessfully sought to recoup that loss in
the district court by renewing his motion to suppress with respect to the district
courts conclusion that his removal from the residence and initial detention were
appropriate. Id. The impetus for Defendants renewed motion, and his present
appeal from its subsequent denial, plainly was our observation that [i]n light of
[Detective] Gigers testimony that officers threatened to send a police dog into the
Aurora residence if Creighton did not exit, it would appear that Creightons seizure
should be analyzed under Payton v. New York, 445 U.S. 573 (1980). Creighton,
277 Fed. Appx. at 799 n.3. In Payton, the Supreme Court struck down a New York
statute that authorized law enforcement to enter a private residence without a
warrant, and, if necessary, with force, to make a routine felony arrest. The Court
commented: Although it is arguable that the warrantless entry to effect Paytons
arrest might have been justified by exigent circumstances, none of the New York
courts relied on any such justification. Payton, 445 U.S. at 583.
We now belatedly proceed to analyze Defendants warrantless seizure from
the Granby Way residence under the exigent circumstances exception to the Fourth
Amendments warrant requirement. 6 Apart from the fact that Defendant possessed
6

We wonder whether Defendant, having failed to challenge the district courts

adverse ruling regarding exigent circumstances as part of the Governments earlier
(continued...)
14

a firearm, the district court on remand did not make particularized findings as to
what the responding officers knew at the time of Defendants warrantless seizure. 7
Nonetheless, because the record is sufficiently developed, we may uphold the courts
6

(...continued)
appeal, should be permitted to raise it as part of his own appeal. In Haynes Trane
Serv. Agency, Inc. v. Am. Standard, Inc., 573 F.3d 947, 963 (10th Cir. 2009), we
reiterated a long-standing legal principle in this Circuit: A legal decision made at
one stage of litigation, unchallenged in a subsequent appeal when the opportunity to
do so existed, becomes the law of the case for future stages of the same litigation,
and the parties are deemed to have waived the right to challenge that decision at a
later time. (internal quotations omitted) (emphasis added); see also United States
v. Henry, 472 F.3d 910, 91314 (D.C. Cir. 2007) (applying an identical principle in
a criminal context); United States v. Kress, 58 F.3d 370, 37374 (8th Cir. 1995)
(same). In his opening brief, Defendant acknowledges that he did not raise the
exigency issue on interlocutory appeal, but the lack of clarity in the district courts
ruling on exigency likely would have prevented [him] from prevailing on this issue
on interlocutory appeal. Appellants Opening Brief at 15. But that is not for
Defendant to decide. Had Defendant thought when opposing the Governments
appeal that the district courts ruling on his initial seizure might be determinative,
he should have said so. But he did not, and now we have two appeals on the
lawfulness of the Granby Way search and seizure instead of one. What is certain is
that nothing prevented Defendant from raising his objection to his initial seizure
based upon a lack of exigent circumstances as an alternative ground for affirming the
district courts original suppression order. See Haynes Trane Serv. Agency, Inc.,
573 F.3d at 963 (observing that the rule has properly been applied to appellees in
some cases). The district court heard evidence the first time around on Defendants
claim that the APD unlawfully forced him from the residence with a police dog.
Creighton, 277 Fed. Appx. at 799 n.3. The district court rejected that claim and
Defendant did not challenge that ruling on appeal. Id. at 799. Still, having said all
that, the Government does not press the point; so we press our query no further. See
generally Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 321 F.3d 950,
99293 (10th Cir. 2003) (discussing the rule and its exceptions). Instead, we dispose
of Defendants third claim, like his first two claims, on the merits.
7

The transcript of the district courts original 2007 ruling, which may contain
such findings, is not part of the present record on appeal and is unavailable to us
electronically. On remand, the court explained: [I]n the transcript from my order
that was . . . filed August 7, 2007 and it is Document 143, I specifically made the
[exigent circumstances] analysis . . . . ROA Vol. 4, Pt. 8, at 99495.
15

ruling if there is any reasonable view of the evidence to support it. United States
v. King, 222 F.3d 1280, 1283 (10th Cir. 2000) (internal quotations omitted).
C.
Our recitation of the facts in our prior opinion as they bear upon the question
of Defendants warrantless seizure is consistent with the record evidence as we again
recite it, this time in more detail. See Creighton, 277 Fed. Appx. at 79798. While
away from the Granby Way residence, Melissa Bowery, another of Defendants
cohorts, became concerned that she might be arrested for criminal impersonation.
According to the testimony of APD Detective Kenneth Giger offered at the motion
hearing, Melissa told police that Defendant had been holding her against her will in
her mother Linda Bowerys Granby Way home for the past two days. Melissa stated
Defendant had forced her to make and pass fraudulent checks to satisfy a drug debt
her husband owed to Defendant:
The information we had from Ms. Bowery was that part of what
Creighton had going on, he had a gun either with him or on him or near
him at all times. He had shown the gun to Melissa. He had never
pointed it at Melissa Bowery, but had threatened to harm her husband.
And on the 11th, Melissa Bowery left to go to a custody hearing. At
that time she was told, if youre not back in three hours, your mother
will be hurt.
ROA Vol. 3, at 1819.
At trial, APD Officer Arturo Zepeda, who arrived on the scene prior to
Detective Giger, substantially confirmed the latters hearing testimony. Officer

16

Zepeda stated Melissa told officers she had lied to Defendant about the custody
hearing in order to escape from the home. Melissa further indicated the threat [of
harm] came directly from Mr. Creighton to her, not to her mother:
[I]nferences were made that if she obviously didnt come back within
the three hours that was allotted for the time to go to the custody
hearing, something would happen, but again no direct threats. And at
that point I believe [Linda] was never made aware of what was
completely going on . . . .
ROA Vol. 4, Pt. 7, at 1157.
After securing the perimeter of the residence, APD officers instructed Melissa
to phone her mother and tell her to come outside. Once outside the home, Linda
Bowery told police she had no clue why [they] were there and there was no
hostage situation. Id. at 1166. But Melissa did not recant at that point. Melissa
testified no when asked at trial if she correct[ed] the officers before they went
into the home that what [she] had told them about the hostage situation was not
true. Id. at 1276. Rather, at that time, police understood, based on Melissas
version of events, that Defendant had made his threats known only to her and not to
her mother. When Officer Zepeda was asked at trial whether it was clear from your
conversation with Melissa Bowery that the threat was made to Melissa Bowery, not
to the mother Linda Bowery, he responded: Correct, it was clear. Id. at 1170.
Therefore, Lindas ignorance of the situation as Melissa reported it to the police was
explainable, giving rise to a possible scenario the APD could not ignore.

17

Cognizant of these circumstances, APD officers decided to remove Defendant

from the home promptly by alerting him via bull horn as to the presence of the police
dog. Officer Zepeda testified to three concerns regarding Defendant remaining in
the home while the investigation proceeded, namely that Defendant reportedly
(1) had held Melissa against her will, (2) remained armed, and (3) was engaged in
forgery and fraud. See id. at 1160. Detective Giger testified as to the APDs
responsibility under the circumstances:
When the officers first got down there, they believed they still had a
hostage situation going on with an armed party inside the house, one
party outside. That is why they had the dog come down to get Ms.
Linda Bowery out, for her safety and well-being. They then brought
Mr. Creighton out with his hands up for his safety, for the safety and
well-being of the officers and placed him in custody. At that point in
time we started our investigation as to whether we have a kidnaping,
extortion, blackmail type situation, a threat situation, and how heavily
involved the check making and ID and fraud situation adds on top of
that. So our initial obligation when we got there was to protect both
Linda Bowery and to try and maintain the safety of Mr. Creighton as
much as we could.
ROA Vol. 3, at 3738.

When asked if the APD would have been totally

irresponsible to have ignored Melissas account, Detective Giger responded: It

would have been a horrendous thing to do if we had ignored that and things had gone
bad. Id. at 3638.
Of course, once Defendant began to speak with Detective Giger outside the
home, Melissas version of events began to unravel.

That her story and her

allegations of false imprisonment and extortion were quickly falling apart became
18

readily apparent.

Creighton, 277 Fed. Appx. at 798.

But such after the fact

assessment of the situation is immaterial to our inquiry because in assessing the

presence of exigent circumstances [i]t does not matter that, in retrospect,
information provided to the officers was wrong. Armijo Sanchez, 601 F.3d at 1072.
What is material is how, viewing the circumstances objectively, a prudent, cautious,
and trained police officer would have responded to the situation. See id. The
foregoing evidence simply does not support Defendants claim that his warrantless
seizure was based solely on a report of a mere presence of a weapon in the context
of suspected counterfeiting activity. Appellants Opening Brief at 19. Suffice to
say Defendants seizure was reasonable under the Fourth Amendment because the
circumstances as they objectively appeared at the time of Defendants seizure
justified the APD acting without a warrant. See Brigham City, 547 U.S. at 404. In
brief, APD officers acted prudently, cautiously, and reasonably in securing the entire
crime scene and gaining safe access to all individuals involved before investigating
the situation further and sorting out the truth.
AFFIRMED.

19

United States v. Creighton, 10-1033

LUCERO, J., concurring.
I concur in the majoritys holding, but write separately to address an important
point of disagreement. The majority speculates in footnote six that we could decline to
address Creightons claim because he failed to make this argument during the earlier
interlocutory appeal. But this circuit has never come close to holding what the majority
suggeststhat unless a criminal defendant advances alternative bases for affirming a
suppression ruling during the governments interlocutory appeal, he cannot make those
arguments in his own direct appeal.
The majority cites Haynes Trane Service Agency v. American Standard, Inc., 573
F.3d 947 (10th Cir. 2009), for the idea that [a] legal decision made at one stage of
litigation, unchallenged in a subsequent appeal when the opportunity to do so existed,
becomes the law of the case for future stages of the same litigation, and the parties are
deemed to have waived the right to challenge that decision at a later time. Id. at 963
(quotation omitted). But this is a principle of civil litigation, and has no place in the
context of an interlocutory appeal in a criminal prosecution. Criminal procedure is
different: 18 U.S.C. 3731 permits the government to take an interlocutory appeal, but
does not authorize a defendant to simultaneously cross-appeal. It is inappropriate to
mechanistically import a rule from civil procedure, where cross-appeals are permitted, to
criminal procedure, where they are not.
Procedurally, this case is nothing like the cases the majority cites for its novel lawof-the-case principle. Both United States v. Henry, 472 F.3d 910 (D.C. Cir. 2007), and

United States v. Kress, 58 F.3d 370 (8th Cir. 1995), held that a criminal defendant who
could have advanced an argument in his first appeal could not advance it for the first time
in his second appeal. Neither case addressed, or even contemplated, arguments not raised
during the governments interlocutory appeal. And, although the Eighth Circuit
recognized that a criminal defendant may advance alternative bases for affirming
suppression during an interlocutory appeal, see United States v. Valle Cruz, 452 F.3d
698, 705 (8th Cir. 2006), the majority cites no authority for the proposition that a
defendant must advance alternative bases during the interlocutory appeal.
I am not surprised by the lack of authority supporting the majoritys proposal,
because the rule, if ever accepted by any circuit, would cause great mischief. Unsure of
which arguments to make on interlocutory appeal, a cautious defendant would simply
advance every possible claim in order to preserve it for appeal. For this reason, even in
the civil context in which the rule rightly applies, it is prudential, not jurisdictional and
appellate courts should not enforce the rule punitively against appellees, because that
would motivate appellees to raise every possible alternative ground and to file every
conceivable protective cross-appeal, thereby needlessly increasing the scope and
complexity of initial appeals. Kessler v. Natl Enter., Inc., 203 F.3d 1058, 1059 (8th
Cir. 2000).
This case illustrates the problem. The district courts oral ruling on exigency is
extremely cursory and lacks any detailed finding of fact or legal analysis. Given that we
will affirm on an alternative basis only if the record is indisputable and clear, see United
States v. Schneider, 594 F.3d 1219, 1227 (10th Cir. 2010), the forfeiture rule suggested
-2-

by the majority would require Creighton to make a facially frivolous argument, just for
the sake of preservation.
Because the forfeiture rule proposed in footnote six would hamper the goal of
judicial economy, and place a fundamentally unfair burden on an appellee who is not
allowed to cross-appeal, our circuit has wisely opted not to adopt such a rule. We should
not change course.

-3-