Skip to main content
Find a Lawyer
Please enter a legal issue and/or a location
Begin typing to search, use arrow keys to navigate, use enter to select

Find a Lawyer

More Options

No Qualified Immunity in Traffic Misdemeanor Warrantless Search

By Robyn Hagan Cain | Last updated on

Here's one lesson that should be added to the Oklahoma Drivers Ed. curriculum: When the police try to pull you over two blocks from your house, don't drive home and hide in the bathroom.

We recognize that teenagers are not known for outstanding judgment, so we almost expect such things to happen.

Police officers, however, are presumed to have better judgment than 17-year-olds, which is why the Tenth Circuit Court of Appeals ruled last week that police officers who kicked the door of Jose and Christina Mascorro's house to extract their teenage, traffic-law-violating son in a warrantless search were not entitled to qualified immunity.

Deputy Sheriff Craig Billings observed Joshua Burchett driving without taillights at night; Billings tried to pull Joshua over, but Joshua fled to his parents' nearby home.

The Mascorros, Joshua's parents, claim they woke to Billings kicking the door in a rage, and ordering someone to open the door. When Jose opened the door, Billings drew his gun, pointed it at Jose's head, and yelled several orders involving the term "motherf****r."

After the Mascorros realized Billings was looking for Joshua, Jose asked if Billings had a warrant. When Christina started to turn away from the door, Billings sprayed her in the face with pepper spray, and then stepped into the house and sprayed her again. Billings then sprayed Jose and Christopher, Christina's 14-year- old son.

When backup arrived to assist Billings, the officers ordered Joshua to come out of the bathroom. When he refused, Officer Tony Simpson drew his gun, kicked down the bathroom door, and took Joshua into custody.

Christina and Jose were charged with obstructing a police officer in the performance of his duties. Christine was also charged with aggravated assault and battery on a police officer because Billings alleged, and subsequently testified, that she poked him in the chest before he sprayed her.

The state court eventually quashed the arrest and dismissed the charges, concluding Billings had entered the house illegally because no exigent circumstances justified a warrantless search. The Mascorros sued the officers for unlawful entry, excessive use of force, false arrest, false imprisonment, and malicious prosecution.

The Tenth Circuit Court of Appeals only examined the officers' qualified immunity with respect to the unlawful entry claim. The court found that the officers were not justified in entering the Mascorros' home to apprehend Joshua because a traffic misdemeanor did not amount to the kind of exigency excusing an officer from obtaining a warrant.

Furthermore, neither the Supreme Court nor the Tenth Circuit has ever found an entry into a person's home permissible based merely on the pursuit of a misdemeanor, therefore no reasonable officer would have thought that the traffic stop circumstances warranted exigent entry in the Mascorros' home.

Lesson learned, police officers: Driving without taillights is not a door-kicking, pepper-spraying, warrantless search kind of offense. If you extract a teenager at gunpoint for a traffic misdemeanor, you can be held personally liable.

Related Resources:

Was this helpful?

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

Or contact an attorney near you:
Copied to clipboard