Marion I. Howell; Francis L. Howell v. Travis Earl, individaully

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARION I. HOWELL; FRANCIS L.
HOWELL,
Plaintiffs-Appellees,
v.
TRAVIS EARL, individaully and as agent
of Gallatin County Sheriff’s Department,
State of Montana; KELLI MUNTER,
individually and as agent of Gallatin
County Sheriff’s Department, State of
Montana,
Defendants,
GALLATIN COUNTY, a political
subdivision of the state of Montana;
JAMES SULAGES, individually and as
agent of the Montana Highway Patrol,
state of Montana; STATE OF
MONTANA,
Defendants,
and
SCOTT SECOR, individually and as agent
No. 14-35652
D.C. No. 2:13-cv-00048-DWM
MEMORANDUM*
FILED
APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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of Gallatin County Sheriff’s Department,
State of Montana,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted April 7, 2017**
Seattle, Washington
Before: W. FLETCHER and GOULD, Circuit Judges, and BLOCK,*** District
Judge.
Gallatin County Sheriff’s Deputy Scott Secor responded to the home of
Francis and Marion Howell on information that a person involved in a car crash
was present there. During the response, Secor entered the Howells’ home without
a warrant. The Howells brought this action under 42 U.S.C. § 1983, claiming in
part that Secor entered their home in violation of the United States and Montana
Constitutions. A jury found for the Howells on the unlawful entry claims and for
the defendants on all other claims. Secor appealed the judgment against him,
challenging two questions included in the jury’s special verdict form: Special
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Frederic Block, United States Senior District Judge for
the Eastern District of New York, sitting by designation.
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Verdict Question 12, “Did Deputy Secor unlawfully enter the Howell[s’] home in
violation of the Fourth Amendment on June 26, 2011?”; and Special Verdict
Question 15, “Did Deputy Secor unlawfully enter the Howell[s’] home in violation
of Article II, Section 11 of the Montana Constitution on June 26, 2011?” We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Secor contends that the special verdict questions were an incomplete
statement of the law because they did not require the jury to find that Secor’s entry
into the home was combined with “an attempt to find something or to obtain
information within the residence.” Secor’s challenge reflects language from recent
Supreme Court decisions suggesting that government officials do not conduct a
“search” within the Fourth Amendment unless they are seeking an object or
information.1 See United States v. Jones, 565 U.S. 400, 408 n.5 (2012) (“Trespass
alone does not qualify [as a search], but there must be conjoined with that what
was present here: an attempt to find something or to obtain information.”); Grady
1 We note that Secor’s challenge seems misplaced. The law governing the
Howells’ claims was presented to the jury in the form of instructions. Secor’s legal
challenge is therefore more appropriately targeted at the jury instructions, not the
special verdict form. Nevertheless, we address Secor’s arguments as he presents
them. We determine whether the district court abused its discretion in its choice to
not include language in the special verdict form regarding Secor’s purpose when
entering the home. See United States v. Reed, 147 F.3d 1178, 1180 (9th Cir. 1998)
(addressing a challenge to a special verdict form under an abuse of discretion
standard).
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v. North Carolina, 135 S. Ct. 1368, 1371 (2015) (per curiam) (characterizing Jones
as “noting that a government intrusion is not a search unless done to obtain
information” (internal quotation marks omitted)).
We need not, and do not, address whether a Fourth Amendment search
requires a particular purpose on the part of the officer to seek information, because
the record in this case makes clear that Secor was seeking information when he
entered the Howells’ home without a warrant. By Secor’s own testimony, he
entered the home to ensure that someone was supervising a young boy he had seen
outside the house. Even if Secor was not looking for the person involved in the car
crash, he was looking for information when he entered the home. It does not
matter that the information Secor was seeking was possibly unrelated to a criminal
investigation. See Grady, 135 S. Ct. at 1371 (“[T]he government’s purpose in
collecting information does not control whether the method of collection
constitutes a search.”); see also City of Ontario v. Quon, 560 U.S. 746, 755 (2010)
(“It is well settled that the Fourth Amendment’s protection extends beyond the
sphere of criminal investigations.”).
Secor’s admission is sufficient to reject his claims under both the United
States and Montana Constitutions. There is another reason to reject Secor’s claims
under the Montana Constitution: the protections of Article II, Section 11 are not
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coextensive with the Supreme Court’s interpretation of the Fourth Amendment.
See State v. Bullock, 272 Mont. 361, 384 (1995). In some instances, Section 11
provides greater protections. See, e.g., id. (granting greater privacy protections in
“open fields” than under the Fourth Amendment). Secor cites to no Montana case
law requiring that an officer be seeking information for his actions to constitute a
search.
We hold that the district court did not abuse its discretion in formulating
Special Verdict Questions 12 and 15.
AFFIRMED
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