By Ken Wallentine for XIPHOS
In law enforcement, bright lines are often hard to come by. While legal rules exist to guide officer conduct — especially in high-stakes situations involving searches and seizures — those rules are frequently tempered by exceptions, caveats and gray areas. The language of relevant legislation, though well-intentioned, is often over-broad or vague, leaving significant room for interpretation. Officers are often expected to make split-second decisions based on legal standards that even courts struggle to define with clarity.
That’s why staying up to date with recent court rulings is so important. Judicial decisions not only interpret existing law but also clarify how those laws apply in real-world encounters, sometimes hinging on the smallest factual differences. Whether it’s a warrantless search, the use of a police dog, or what qualifies as consent, courts help shape the practical boundaries of what’s lawful.
In this issue of Xiphos, we examine several recent appeals court cases that highlight how constitutional protections are applied (and sometimes redefined) through the lens of judicial precedent and evolving police practices.
Warrantless Entry and Dog Bite Leads to Liability for Deputies
Luethje v. Kyle, 2025 WL 851085 (10th Cir. 2025)
Though this is a case police service dog handlers should study carefully, it is also an excellent paint-by-the-numbers lesson on when warrantless entry may be lawful under the emergency aid doctrine. All officers can benefit from the reminder of the simple — but essential — elements necessary to justify a lawful warrantless entry and thereby avoid violating the Fourth Amendment.
Early on a February evening in Castle Rock, Colorado, Tyler Luethje’s neighbor called 911 and reported seeing a man break the front window of Luethje’s home and then run away without entering. When Deputies Travis Kyle and Scott Kelly arrived, they saw a broken window and “heard someone speaking from inside the house,” but did not hear any sound of a struggle or call for help. A deputy removed the screen and broke out the rest of the glass. He then lifted Sig, his unleashed police service dog, through the window in hopes of locating the suspected burglar.
Sig found Luethje sleeping in his bed and bit his arm, hand and abdomen. Deputies entered and Luethje screamed, “I live here! I live here! I live here!” Hearing Luethje’s screams, Deputy Kyle yelled, “Bring my dog to me!” The two deputies then entered Luethje’s home through the window and found Luethje in his bedroom. The deputies questioned Luethje while Sig continued to bite him. Luethje said he was home alone, and that he had broken his own window. After approximately one minute, Deputy Kyle called off the dog.
The deputies continued to question Luethje. They handcuffed him and walked him out into the “freezing” February night wearing sweatpants but no shirt, shoes or socks. Shortly thereafter, Luethje was taken to the hospital to be treated for dog bites. After Luethje was transported to the hospital, the deputies entered the home a second time to conduct “a thorough search.” They didn’t find anyone else there or evidence of any crime.
This decision bluntly reminds officers to pause and question the legal basis for entering a home without a warrant.
Luethje was treated and released without charges. He sued, alleging unlawful entry and search of his home, false arrest and excessive force.
The trial court refused to grant qualified immunity to the deputies, ruling Kyle and Kelly violated clearly established Fourth Amendment protections against unlawful entry and search, false arrest and excessive force. The trial court found the deputies sent Sig into Luethje’s home to find and bite him “without any warning (or, at most, approximately a six-second warning).” Though the deputies claimed to have given an audible warning before sending the K9 through the window, there were no warnings heard on the recording submitted in evidence.
On appeal, the 10th Circuit agreed the deputies were not entitled to qualified immunity. In its ruling, the court held the deputies’ warrantless entries were each unlawful. The panel also found law enforcement did not have probable cause for the arrest and that allowing the canine to continue biting Luethje after he was subdued constituted excessive force.
In Florida v. Jardines (569 U.S. 1 (2013)), the Supreme Court held, “when it comes to the Fourth Amendment, the home is first among equals.” Among the few exceptions allowing warrantless entry into a home is the emergency aid doctrine, which allows officers to enter a home without a warrant where “(1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable” (United States v. Najar, 451 F.3d 710 (10th Cir. 2006)).
In the same vein, SCOTUS has also held that “Physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” (Payton v. New York, 445 U.S. 573 (1980)).
The appellate court held the deputies did not have an objectively reasonable belief in an ongoing emergency. The only information they had upon arrival at Luethje’s house was that an unidentified man had broken a window and fled the scene. There was no indication the man had entered the home. The deputies conducted no investigation beyond confirming the window was broken and perhaps hearing a voice inside before sending Sig through the window. The court also held that “the deputies’ argument they ‘reasonably believed’ there was a suspect inside who was ‘reluctant to talk to the police’ stretches the facts alleged beyond recognition.” Indeed, the court’s sharp criticism was based on the lack of evidence that the deputies called out to the person inside or made any police service dog warnings before lifting Sig through the window. The fact that no verbal warning can be heard on the audio recording in evidence reinforces this position.
The court also held the second warrantless entry and search was plainly unlawful. The deputies could not claim they had the homeowner’s (Luethje’s) permission. Nor could the search — stated to be “thorough” — reasonably be construed as a protective sweep.
Next, the court held Luethje was arrested without probable cause. All parties agreed Luethje was arrested as of the moment that Sig bit him. The deputies argued they had probable cause to arrest the man for criminal mischief (i.e., for breaking his own window). As the court noted, though, the caller had reported that the man who broke the window ran from the scene. Therefore, it was not reasonable to believe the person who broke the window would be inside Luethje’s home. Nor was it reasonable for the deputies to assume the first person Sig found and bit inside the home was necessarily the person who broke the window. As the deputies’ attorney acknowledged in oral argument, a five-year-old child might well have been the first person found by the dog. The court observed the deputies’ failure to do “some basic investigation — such as making announcements and seeing if anyone came to the door — that could dispel any suspicion that a crime was underway” undermined finding probable cause to arrest. Upon review, the panel concluded there was no arguable probable cause to arrest and thus the arrest violated the Fourth Amendment.
Finally, the force used to arrest Luethje was unreasonable. Applying the three-factor test of Graham v. Connor, (490 U.S. 386 (1989)), the court held the deputies were not entitled to qualified immunity. The Graham factors consider: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
The deputies argued the first factor weighed in their favor because they believed Luethje was committing a burglary. The court agreed. However, the second and third factors weighed strongly in Luethje’s favor. Noting the second factor is “undoubtedly the most important,” the court held, “under the facts alleged in the complaint, there was no indication that Luethje posed any threat to the deputies at the moment they deployed force.” The deputies conceded they perceived no threat to themselves, but argued that persons inside the home could have been threatened. The court countered: “A broken window and suspicion of a burglary, without more, does not generate a reasonable belief a third party is in immediate danger.”
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The third Graham factor also weighed heavily in Luethje’s favor because there was no indication he was “actively resisting arrest or attempting to evade arrest by flight.” The court also discussed the duration of Sig’s biting once deputies located Luethje. The fact that they continued to question him for approximately one minute, rather than remove Sig and restrain Luethje, seems to have been a major consideration.
This decision bluntly reminds officers to pause and question the legal basis for entering a home without a warrant. No Fourth Amendment incursion is more closely scrutinized by the courts. The Luethje v. Kyle case should serve as a reminder of how narrowly the emergency exception doctrine applies. Significant lessons specifically for police service dog handlers include providing loud, clear warnings (and ensuring that the warnings are well documented), and allowing time for carefully listening for a response and providing an opportunity for compliance. Handlers should also be mindful to end the bite and secure the subject as soon as reasonably possible, holding questions about identification, etc., until after the handcuffs are on and the subject is controlled.
Proper Seizure of Bullet Removed Through Surgery
United States v. Gaye, 2025 WL 758570 (10th Cir. 2025)
In Denver, Colorado, Joseph Gaye called 911 from his office and reported that a masked man had run into his office, shot him in the testicles and upper thigh, then ran out. When officers arrived, they found Gaye bleeding on the floor. The officers rendered aid, applying a tourniquet. After medical personnel transported Gaye to the hospital, officers saw a bullet casing on his desk. However, they found no sign of forced entry, struggle or the presence of another person. Based on the evidence, officers suspected Gaye had shot himself and falsely reported being shot by an intruder. The bullet trajectory and unique position of the injury suggested the man’s wound was self-inflicted.
Officers obtained a search warrant for Gaye’s office. In a locked drawer, underneath a document addressed to Gaye, they found a 9mm Sig Sauer semi-automatic firearm with an obliterated serial number along with two boxes of Luger 9mm ammunition. One round was missing from the gun’s magazine.
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A surgeon removed the bullet from Gaye’s leg at the hospital and dropped it into an evidence bag. Gaye, who was drifting in and out of consciousness, never said he wanted to keep the bullet, that the bullet was his, or that the hospital could not release the bullet to the police. Ballistics testing showed the bullet was fired from the handgun found in Gaye’s drawer.
Gaye was indicted and convicted for being a felon in possession of a firearm. He asked the trial court to suppress the evidence obtained from the search warrant and the bullet removed from his leg. The judge denied Gaye’s motion to suppress, finding the search warrant was adequately supported by probable cause and executed in good faith. The court also ruled Gaye had consented to the removal of the bullet, thus relinquishing any privacy interest in it.
On rare occasions, a search warrant may be used to obtain evidence from a suspect through surgical means. Typically, the target of this type of search is a bullet. Such searches are restricted by the severe test of weighing the medical dangers of the surgery, the degree of intrusion into the suspect’s interests in privacy and bodily dignity, and the societal interest in determining guilt or innocence (Winston v. Lee, 470 U.S. 753 (1985)). There are other internally intrusive searches that also require a warrant. For example, in People v. Scott (145 Cal. Rptr. 876 (Cal. 1984) a judge issued a warrant permitting a physician to massage a man’s prostate gland to obtain a semen sample at the request of police. This was not such a case. In Gaye’s case, the bullet was removed from his body as part of medical treatment. No one sought or received a warrant for the bullet.
Gaye, who was drifting in and out of consciousness, never said he wanted to keep the bullet, that the bullet was his, or that the hospital could not release the bullet to the police.
The appellate court affirmed the trial court’s decision. According to the 10th Circuit, the search warrant for Gaye’s office was sufficiently specific and executed in good faith. The court also found Gaye had consented to the removal of the bullet when he consented to medical treatment; thus, there was no Fourth Amendment violation. The court concluded the evidence obtained from the search and the bullet itself were admissible, and Gaye’s weapons conviction was upheld. At the end of the day, Gaye may have the best story to share with his fellow inmates in federal prison.
In Child Sexual Abuse Case, ‘Talk Nice, Think Mean’ Pays Off
United States v. Maytubby, 2025 WL 837975 (10th Cir. 2025)
Once again, an officer’s skillful use of a “friendly and reasonable tone” during an interview was a key factor in finding a confession to be admissible in court.
In Calera, Oklahoma, Officer T.J. White called Lance Maytubby and asked him to come to the police station. Officer White told the man two of his nieces had claimed Maytubby sexually abused them. The officer conducted the interview in the police department break room, where the door was left open. White also informed Maytubby he did not have to talk, he was not under arrest, and he could leave at any time. Maytubby initially denied the accusations.
This case serves as yet another reminder to think mean, but talk nice while doing so!
When Maytubby persisted in his denials, Officer White emphasized how he wanted to report that Maytubby made a mistake and that the behavior “hasn’t happened since.” White reminded Maytubby he was not required to speak to him, telling the man he was not going to arrest him that day. Officer White emphasized his desire to include explanatory information — such as Maytubby being a pastor, a “family man” and someone who just “acted out of character” — in his report to the district attorney. He told Maytubby: “I can’t help you out if you’re not honest to me, I just can’t. I can’t go in there and say, … ‘Hey, he manned up. This is how it is. The guy acted out of character.’”
Maytubby told Officer White he wanted to leave the interview, adding, “Okay, I’m going to say ‘yes.’”
“What do you mean?” White asked. “You did do these things?”
Maytubby answered, “Yes.”
Officer White allowed Maytubby to leave and told him that he might not be arrested at all, because that was the prosecutor’s decision.
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Maytubby was indicted for several sexual crimes. He asked the trial court to suppress his admissions to Officer White. The trial judge held a pretrial suppression hearing in which Officer White testified. The court denied Maytubby’s motion to suppress his confession, ruling Maytubby’s statements were voluntary. The court cited the short duration of the interview, the non-coercive environment and the absence of physical abuse or aggressive behavior by Officer White.
The court of appeals affirmed the trial court’s ruling to allow the confession into evidence. The appellate court agreed Maytubby’s confession was voluntary, again noting the non-coercive circumstances of the interview and highlighting the officer’s “friendly and reasonable tone” evident on the recording from the body-worn camera. The court held Officer White’s comments about wanting to report Maytubby’s positive attributes, his willingness to be honest, and possibility of leniency did not overcome Maytubby’s free will.
This case serves as yet another reminder to think mean, but talk nice while doing so!
Observation from Outside Curtilage Permits Incursion
United States v. McGhee, 2025 WL 649897 (8th Cir. 2025)
In Davenport, Iowa, Jaylyn McGhee and his six-year-old son were sitting in a parked car outside his home. Someone shot at McGhee, injuring his son, who McGhee drove to a nearby hospital.
Officers responded to the scene, unaware the shooting had caused injuries. The officers found shell casings, suspected narcotics and money outside McGhee’s house. They also saw blood spatter and a powdery substance on the deck and stairs leading to a side door of the house. Looking through a window, they could see blood spatter inside the house as well.
Neighbors and the 911 callers reported a vehicle had arrived at the house and briefly parked on the side of the street. Then another vehicle pulled up next to it. The witnesses said they heard eight shots fired before both vehicles sped away. At the same time, officers received information from the hospital about a boy with multiple injuries from gunshots.
“Curtilage” has been defined by the courts as “the area into which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life.”
Officers obtained a search warrant for McGhee’s house. Serving the warrant, they found 5.48 grams of cocaine base and 17.96 grams of heroin and fentanyl in the kitchen. The officers followed a blood trail into the nearby master bedroom, where they found two guns. McGhee was charged with drug offenses and being a felon in possession of firearms.
The trial judge denied McGhee’s motion to suppress the evidence found in his home, ruling the officers’ observations from the front yard were lawful and exigent circumstances justified their entry into the side yard. The information gathered by the officers’ observations supported probable cause for the search warrant. McGhee pled guilty, then appealed the denial of the motion to suppress.
The court of appeals agreed that the officers’ initial observations were lawful and that exigent circumstances justified their entry into the yard and looking into McGhee’s window. McGhee claimed the officers unlawfully intruded on the curtilage of his home. “Curtilage” has been defined by the courts as “the area into which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life” (Oliver v. United States, 466 U.S. 170 (1984)). Curtilage is treated as part of the home itself for Fourth Amendment purposes (Hester v. United States, 265 U.S. 57 (1924)). According to the Supreme Court, an area such as an open field that is outside of a residence’s “curtilage” may be subject to a free peek, and may be searched without any suspicion or probable cause.
The scope of a house’s curtilage is determined by considering the proximity to the home, whether it is fenced or otherwise enclosed, the nature of the use of the area, and the efforts the resident takes to screen the area from public view (United States v. Dunn, 480 U.S. 294 (1987)). The front porch of a residence is generally part of the curtilage, requiring a warrant, consent or some other Fourth Amendment warrant requirement exception. (For example, in Florida v. Jardines (569 U.S. 1 (2013)) the Supreme Court found that a detector dog sniff of a residential front door was a search and required a warrant.)
Agreeing with the trial court that the officers did not intrude on the curtilage, the appellate court noted McGhee’s front yard “was not protected by a fence or any other enclosure, and no efforts were taken to shield the yard from public observation or entry.” However, the side yard was fenced, partially obstructed from further view by trees, and had a grill, suggesting it was for family use. The court held the side yard was part of the curtilage.
The officers saw the blood spatter and powdery substance from the front porch. Their entry into the curtilage of the side yard to more closely examine what they saw was then justified by the exigent circumstances exception to the warrant requirement. The court noted that, in responding to shots-fired calls, the officers found eight shell casings in front of McGhee’s house. Based on their observations, they had reason to believe there was at least one victim. Furthermore, one officer testified that the “ultimate reason” they followed that blood trail was “to see if there were any victims that potentially could have ran into the house or ran to the backyard who were obviously bleeding.” The court held these facts were sufficient to lead a reasonable officer to believe a person “is in need of immediate aid,” thus triggering the exigent circumstances exception to the warrant requirement.
KEN WALLENTINE is police chief of the West Jordan (Utah) Police Department and former chief of law enforcement for the Utah attorney general. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. Wallentine is a member of the board of directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.
