NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 18 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEX J. LEGE, No. 22-35029

Plaintiff-Appellant, D.C. No. 5:20-cv-00006-HRH

v.

MEMORANDUM*

CITY OF KETCHIKAN, a municipal corporation; ROBERT CHEATAM, in his individual capacity; JUSTIN OSTLER, in his individual capacity; LOUIS J. BOENTA, Jr.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Alaska H. Russel Holland, District Judge, Presiding

Argued and Submitted August 8, 2022 Anchorage, Alaska

Before: S.R. THOMAS, McKEOWN, and CLIFTON, Circuit Judges.

Plaintiff-Appellant Alex Lege appeals the district court’s grant of summary

judgment in favor of Defendants-Appellees Robert Cheatam, Justin Oster, and the

City of Ketchikan. We have jurisdiction under 28 U.S.C. § 1291, and we review

the grant of summary judgment de novo, Fin. Mgmt. Advisors, LLC v. Am. Int’l

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Specialty Lines Ins. Co., 506 F.3d 922, 925 (9th Cir. 2007). We affirm.

Given Lege’s affirmative consent and the fact that he stepped back and

appeared to welcome Oster into his apartment, a reasonable officer would have

concluded that he had consent to enter the apartment, cf. United States v. Garcia,

997 F.2d 1273, 1281 (9th Cir. 1993), and the district court properly concluded that

no reasonable juror would find to the contrary. Thus, Oster’s initial entry did not

violate the Fourth Amendment. See, e.g., United States v. Crapser, 472 F.3d 1141,

1146–47 (9th Cir. 2007).

We are not persuaded by Lege’s remaining arguments as to Oster’s initial

entry. Lege has waived any argument that his consent was not voluntary under the

five-part test in United States v. Russell, 664 F.3d 1279 (9th Cir. 2012), a test that

analyzes the voluntariness of a search of the person. With respect to Lege’s final

argument, although Oster physically occupied the curtilage of Lege’s home when

he stood outside his apartment and knocked on his door, he was permitted to do so

under the “knock and talk” exception to the warrant requirement, which enables

police officers to “encroach upon the curtilage of a home for the purpose of asking

questions of the occupants.” United States v. Lundin, 817 F.3d 1151, 1158 (9th

Cir. 2016) (citation and internal quotation marks omitted).

The district court correctly concluded that the scope of Lege’s consent

allowed Oster to re-enter the apartment after he had left to consult with Cheatam.

2 Before leaving the apartment, Oster said to Lege, “I don’t know what’s going on

yet, but just hang out, okay?” Lege responded, “by all means,” and then told Oster

that he could “even keep [the door] open”—to which Oster replied, “I’ll just leave

it cracked.” It is clear from this exchange that Lege understood Oster would be

returning to the apartment and consented to his re-entry.

The district court also correctly concluded that Cheatam was allowed to

enter the apartment pursuant to United States v. Rubio, 727 F.2d 786 (9th Cir.

1983), where we held that a consensual search may not be “validly qualified by the

number of officers allowed to search,” and explained that, “[o]nce consent has

been obtained from one with authority to give it, any expectation of privacy has

been lost[,]” and “the entry of additional officers would [not] further diminish the

consenter’s expectation of privacy,” id. at 797. Contrary to Lege’s assertion,

Rubio was not overruled by Florida v. Jimeno, 500 U.S. 248 (1991), which recited

the well-established proposition that a suspect may “delimit as he chooses the

scope of the search to which he consents.” Id. at 252. We acknowledged the same

principle in Rubio but clarified that the “limitations” a suspect may validly impose

on a search pertain to the physical area to be inspected, not the number of officers

involved. 727 F.2d at 796. Neither Jimeno, nor the other cases cited by Lege, did

anything to disrupt this understanding. Indeed, we relied explicitly on Rubio’s

holding and rationale in deciding United States v. Bramble, 103 F.3d 1475 (9th Cir.

3 1996), a case that came five years after Jimeno.

Finally, Lege’s warrantless arrest inside his home did not violate the Fourth

Amendment. In Payton v. New York, 445 U.S. 573 (1980), the Supreme Court

held that “the Fourth Amendment . . . prohibits the police from making a

warrantless and nonconsensual entry into a suspect’s home in order to make a

routine felony arrest.” 445 U.S. at 576 (emphasis added). And in United States v.

Gray, 626 F.2d 102 (9th Cir. 1980), we observed that “[t]he existence of probable

cause to arrest . . . does not justify entering a suspect’s home without either consent

or a warrant.” Id. at 105 (emphasis added). Both cases imply that a warrantless

arrest inside the home upon probable cause is valid if police have entered pursuant

to a valid search warrant or consent—an understanding that our subsequent cases

have reinforced. See, e.g., United States v. Struckman, 603 F.3d 731, 747 (9th Cir.

2010).

Because Lege consented to the officers’ entry into his home, the

constitutionality of his warrantless arrest turns on whether there was probable

cause. Although the district court determined that the officers had probable cause

to arrest Lege for felony third-degree assault under Alaska Statute

§ 11.41.220(a)(1)(A), Lege made no attempt to challenge this determination in his

Opening Brief, thereby waiving any challenge in this regard. See United States ex

rel. Kelly v. Serco, Inc., 846 F.3d 325, 335 (9th Cir. 2017). Lege further waived

4 any challenge to this determination by failing to address it in his Reply Brief even

after Defendants raised it in their Answering Brief. See Maciel v. Cate, 731 F.3d

928, 932 n.4 (9th Cir. 2013). In light of the district court’s unchallenged probable

cause determination and the fact that Oster and Cheatam entered the apartment

with Lege’s consent, there is no basis to disturb the district court’s grant of

summary judgment with respect to Lege’s claim of unlawful seizure.

AFFIRMED.

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