The Honor able William O. Ber telsman, United States District J udg e for the * Easter n District of Ke ntucky , sitti ngby designation. NO T REC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 07a0217n.06 F iled: Marc h 23, 2007 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT CASE NO. 05-6648

M ARIAF ER G USO N, e t a l. : : P laintif fs-App ellants : : On App eal from the v. : United States Distr ict Court : for the Eastern Distr ict of Tenn essee : UN IC OI C OU NT Y, TEN NE SSEE, e t a l. : : Defendan ts-Appellees : : : : BEFORE: M ARTIN and COOK, CIRCUIT JUDG ES; BE RTELS MAN, D istrictJudge . * P ER CURIAM : Th is c a se ari se s o ut o f a

se arc h o f a

dw e lli ngby

law e nf or c e me nt o ff

ic e rs , who we re in pursuit of a fug itive. The off icer s had an a

rre st warr ant for the fug itive, but they did not have a

sear ch wa rra nt for the dwe lling. The fug itive was not found in the dwe lling, but seve ral of the pe rs on s who we re the re su e d und e r 4 2 U .S. C. § 19 83 to r e c ov e r d ama g e s f or the wa rr antl e ss entry . I ssues of excessive f orce or har assment ar e not ra ised on appe al. The of fice rs wer e in the dwellingfor only

a fe w minutes. Be fore the police e ntere d, and while the dw elling w as under surveillance , the tenant dr ove

awa y in her c ar. A ctingon suspicion that the fug itive might be in the c ar, one of the off icer sbriefly

stopped it and conduc ted a visual sea rch. This incide nt is also the subject of one of the counts in the suit. The district cour

t gr anted summary

judgme nt on the g round that exige nt circumstanc es justified the war

rantless e ntry

and the other

claims wer e also without merit. We agree and aff irm. Hig hly

condense d, the fa cts wer e as f ollows. Office rs of the Town of Erw in rec eived a tip from a re liable informant that the f ug itive was in the dwe lling. The y proce eded to put the dwellingunder sur

veillance . The infor

mant called ba ck to say

the fug itive had left. Since the Town off icer s had che cked out the only vehicles se en leaving the dwelling , they conclude d that this information was er

roneous a nd that the fug itive, theref ore, w as still ins ide. The Town of

fice rs ca lled the Sheriff

pursuant to the policy

of the Town when conf

ronted with a sea rch situation. The Sheriff himself ar rived on the sc ene. T wo or thre e re quests wer e made of the occ upants of the dwe lling to per mit entry , but those reque sts were ref used. The Sheriff the n soug ht advice f rom the County ’s chief

prosec utor as to whethe r suffic ient exigent circ umstances e x isted to justi fy an entr y without a sear ch wa

rra nt. The Sheriff

advised the prosec utor that the off

icer s believed the fug itive was in the house, that he had a history of violence, a

nd that the offic ers suspec ted that the fug itive had the occ upants of the dwe lling under duress. Th e pr os e c uto r a dv ise d th at an e ntr y wa s ju sti fi e d b ut t

hat th e se arc h s ho uld

be lim ite d to only those are as whe re a

person c ould be found. The office rs then ente red ove r the objec tions of the occ upants, and promptly left af ter a brief se arc h observingthese c riteria. T he liberty of the occupa nts was not restra ined in any way duringthe sea

rch. The y

could have left, had the y wished.All of this took about 45 minut es.

We a g re e wi th t

he dis tr ic t c ourt

that no vio latio n o f t

he pla int if

fs ’ c on sti tut ion a l r ights

arose out of these e vents. The district cour t filed an e x tensive, deta iled opinion which may be fo un d at Fe rgus on v . U

nic oi C ou nty , No. 2:03-CV-360, 2005 WL2407664 (E.D. Te nn. Sept. 29, 2005), with which we substantially agree . The district cour

t held that a brie f Terry stop of the ca r wa s justified, beca

use the police had a r easona

ble suspicion that the fug itive might be hidinginside. Se ege ne ra lly Te rry v . O hio , 392 U.S. 1, 22-23 (1968), Lav e nd e r v . Ci ty of B lue As h , No. 05-3058, 2006 WL126710 (6th Cir. J an. 17, 2006). The district cour

t further held that exigent c ircumstance s justifying the sear ch existed beca use the off

icer s had an obje ctively

rea sonable be lief that a da ng erous f ug itive was in the dwellingand that the oc cupants might be under duress a nd in dang er. Cf. Br igh am City v . S tua rt, 12 6 S. Ct. 19 43 , 1 94 5 ( 20 06 ). Th e se arc h w a s c on du c te d in the le a st i ntr

us ive mann e r p os sib le under the circ umstances. In addition, the district court held that the e vidence disclosed no objectionable policy of

e ith e r o f t he mun ic ipa l de fe nd ants
. The district cour

t also held that eve n if there had bee n a constitutional violation, all of the individual defenda

nts had qualified immunity

. The issues of standingraised by Def endants/Appe llees have no bearing on the outcome of th i s co urt ’s d ec i s i o n . T h er ef o re , i ti s unn ec es s ary

t o d ec i d e th e i s s u es o f s t an d i n g. The Appe llants allude to some fac tual asser tions that the district court opinion did not discuss. We do not believe that these f actua l assertions ra ised any issues of ma te ria l fac t. See F e d. R. C iv. P. 5 6; Street v. J .C. Bradford &Co., 886 F.2d 1472, 1479 ( 6th Cir. 1989)

.Th e re fo re , th e jud g me nt o f t he dis tr ic t c ourt

is AF F IRMED.