UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DOUGLAS RATHBUN, 

 Plaintiff - Appellee 

v. 

BERNARD MONTOYA, Detective, 

Denver Police Department, Metropolitan 

Auto Theft Task Force, sued in his 

individual capacity; JOHN M. LIETZ, 

Detective, Denver Police Department, 

Metropolitan Auto Theft Task Force, sued 

in his individual capacity; DAVID 

SCONCE, Sergeant, Denver Police 

Department, Metropolitan Auto Theft Task 

Force, sued in his individual capacity; 

JAMES SEWALD, Officer, Denver Police 

Department, sued in his individual 

capacity, 

 Defendants - Appellants, 

and 

ART PETERSON, Detective, Jefferson 

County Sheriff's Office, Metropolitan Auto 

Theft Task Force, sued in his individual 

capacity; W.D. HOOVER, Sergeant, 

Lakewood Police Department, 

Metropolitan Auto Theft Task Force, sued 

in his individual capacity; SEAN 

TEMPLETON, Detective, Lakewood 

Police Department, sued in his individual 

capacity; OFFICER JOE OBECHINA, 

Detective, Lakewood Police Department, 

sued in his individual capacity; CHARLES 

HEMMING, Detective, Wheat Ridge 

Police Department, Metropolitan Auto 

No. 14-1352 

(D.C. No. 1:13-CV-03060-RPM) 

(D. Colo.) 

FILED 

United States Court of Appeals

Tenth Circuit 

October 16, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Theft Task Force, sued in his individual 

capacity; DELFINO RODRIGUEZ, 

Inspector, Denver Neighborhood 

Inspection Services, sued in his individual 

capacity; OFFICER MORETTI, 

Metropolitan Auto Theft Task Force, sued 

in his individual capacity; JOHN DOES 

1-4, Metropolitan Auto Theft Task Force, 

sued in their individual capacities, 

 Defendants. 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, HOLMES and McHUGH, Circuit Judges. 

_________________________________ 

This is an interlocutory appeal from the denial of a motion to dismiss 

asserting qualified immunity. Defendants-Appellants are law-enforcement officers 

who are members of the Metropolitan Auto Theft Task Force (M.A.T.T.), 

a multi-jurisdictional law-enforcement coalition in the Denver metropolitan area 

formed to combat automobile theft. On November 10, 2011, they executed a search 

warrant at Douglas Rathbun’s business and seized five motor vehicles. Claiming the 

search warrant was invalid, Mr. Rathbun brought suit under 42 U.S.C. § 1983 for 

violation of his Fourth Amendment right to be free from unreasonable searches and 

 *

 After examining the briefs and appellate record, this panel has 

determined unanimously to honor the parties’ request for a decision on the briefs 

without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is 

therefore submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

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seizures. He sued all of the officers in their individual capacities for money 

damages.1

 The officers filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6) 

invoking qualified immunity. The district court denied the motion and the officers 

appeal. We have jurisdiction under 28 U.S.C. § 1291 over this final collateral order 

denying the motion to dismiss on qualified-immunity grounds. See Ashcroft v. Iqbal, 

556 U.S. 662, 672 (2009) (holding appellate courts have jurisdiction over the district 

courts’ orders rejecting as a matter of law qualified immunity raised in a motion to 

dismiss). We reverse. 

I. Background2

 

 Mr. Rathbun owns and operates an auto-body repair and customization 

business located in the City and County of Denver, Colorado. Defendant Lietz, a 

detective with the Denver Police Department, prepared an affidavit in support of a 

search-warrant application. The affidavit accompanied the application and was 

 1

 All but four of the defendants have been dismissed from this lawsuit. 

The remaining defendants are appellants Montoya, Lietz, Sconce, and Sewald. 

2

 Facts are taken from Mr. Rathbun’s amended complaint. See Brown v. 

Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011) (stating that when reviewing a 

district court’s denial of a motion to dismiss based on qualified immunity, “all 

well-pleaded factual allegations in the complaint are accepted as true.” (ellipsis and 

internal quotation marks omitted)). In addition, we draw facts from the search 

warrant and the affidavit in support of the search warrant, both of which are 

referenced in the amended complaint. See Smith v. United States, 561 F.3d 1090, 

1098 (10th Cir 2009) (“In evaluating a Rule 12(b)(6) motion to dismiss, courts may 

consider not only the complaint itself, but also attached exhibits and documents 

incorporated into the complaint by reference,” as well as “documents referred to in 

the complaint if the documents are central to the plaintiff’s claim and the parties do 

not dispute the documents’ authenticity.” (citations and internal quotation marks 

omitted)). 

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expressly incorporated into the search warrant. The affidavit described Detective 

Lietz’s extensive law-enforcement experience, including over 30 years as a police 

officer, 18 of which were as a detective, and his emphasis on automobile thefts. The 

affidavit also related that he had received a tip from Christina Lane, who said she was 

Mr. Rathbun’s former wife. Ms. Lane reported that Mr. Rathbun was storing stolen 

vehicles at his business, cooking and smoking methamphetamine, having sex with 

young girls, and videotaping sexual activity. A confidential informant stated that 

Mr. Rathbun kept drugs on the top of the rolling garage door so they could not be 

seen when the door was open. 

Detective Lietz also included the following information in his affidavit: He 

had received information from other law-enforcement officers that several vehicles 

were stored in a lot adjacent to Mr. Rathbun’s business. Sergeant Sconce reported 

that there was a vehicle parked at the business that had a license plate for which there 

was no official registration. Officer Lynch reported that an arrestee had informed the 

authorities that she received a fictitious temporary vehicle permit from Mr. Rathbun, 

who made phony permits to be used with stolen vehicles and had done so for many 

years. Officer Lynch further advised that Mr. Rathbun was associated with numerous 

stolen vehicle arrests she had made in the last few years. 

In addition, upon checking police records, Detective Lietz learned that 

Mr. Rathbun’s “name came up in numerous stolen vehicle arrests,” Aplt. App. at 121, 

and earlier that year, he had been arrested in a stolen truck while in possession of 

methamphetamine. Detective Lietz also conducted video surveillance of 

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Mr. Rathbun’s business premises. He observed that there were vehicle parts on the 

building roof, including several bumpers. On October 20, 2011, the video camera 

showed a black Blazer towing a small flatbed trailer to the business. The trailer’s 

license plate was for a camper, not a flatbed trailer, suggesting a misuse of license 

plates or theft of the trailer. The video camera revealed that during the night of 

October 29, 2011, an RV trailer was towed onto the business premises. The next day, 

Mr. Rathbun was observed replacing the glass in the door and carrying items from 

the RV trailer into his building. A day later, Detective Lietz was able to determine 

that the RV trailer had been reported stolen on September 27, 2011. Officers went to 

the business to recover the RV trailer. While there, officers knocked on the door and 

looked in the windows, but it appeared that no one was present. After the officers 

departed, the garage door opened and several people left the business. 

 Detective Lietz’s affidavit indicates that the warrant application was approved 

by a Denver deputy district attorney before it was submitted to a judge. A Denver 

judge acting as a neutral magistrate then authorized the search warrant on 

November 4, 2011. The search warrant described the property to be searched for and 

seized as follows: 

Any vehicle or vehicle part that may be reported as, or appear to be, 

stolen, have tampered or altered: Ignition switch, VIN or serial 

numbers, plates, stickers, license plates or any altered, or other, 

ownership documentation. 

Any items that may be removed from other motor vehicles such as 

cameras, cell phones, wallets, purses, laptop computers, check books, 

credit cards, etc. 

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Any Ownership documents or any paperwork to assist with 

identification of owners of above parts/vehicles. 

Any tools used to start, steal, tamper or alter, or disassemble motor 

vehicles or alter or change VINs or VIN plates including but not limited 

to: die stamps, rivet and rivet guns, VIN plate blanks, license plates of 

any kind, “jiggler keys,” lock picking tools, slide hammers, “dremmel” 

tools, etc. 

All types of computers, tablets, scanner/printers, video or digital 

cameras, cell phones, and digital or magnetic storage of any kind that 

could be used to record or store video, audio or still photos. 

Controlled substances (including but not limited to coca leaves, coca 

leaf derivatives, stimulants, opium derivatives, depressant drugs, 

hallucinogenic drugs, tranquillizers), methamphetamine, amphetamine 

and marijuana and marijuana concentrate all as defined in Colorado 

Revised Statutes 18-18-102, as amended, together with such vessels, 

implements and furniture used in connection with the manufacture, 

production, storage, sale, distribution or dispensing of such substances. 

Aplt. App. at 116. 

 The M.A.T.T. team executed the warrant on November 10, 2011. The team 

seized five vehicles and arrested Mr. Rathbun.3

 Mr. Rathbun was released from 

custody later that day and no charges were filed against him. 

II. Procedural History 

Mr. Rathbun sued, claiming the officers violated his constitutional rights by 

failing to investigate Ms. Lane’s credibility and basing the search-warrant affidavit 

on her information which was not credible, and by conducting an unconstitutional 

 3

 The M.A.T.T. team had a warrant to arrest Mr. Rathbun. Although his 

complaint alleged that he was arrested without probable cause or a warrant, he 

subsequently conceded that his arrest was lawful, thus abandoning this claim. 

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search of his property and seizing vehicles he lawfully possessed. The officers 

moved to dismiss, asserting they were entitled to qualified immunity.4

In response to the officers’ motion to dismiss, Mr. Rathbun contended that the 

search warrant was a prohibited general warrant that failed to state with particularity 

the items to be seized and authorized the officers to seize virtually any vehicle. See

Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (stating that a general warrant 

is one that authorizes a “general, exploratory rummaging in a person’s belongings”). 

The district court, without providing any analysis, held that the warrant was facially 

invalid and “[a]ny reasonably-trained police officer would know that it authorize[d] 

an unreasonable search and seizure in violation of the Fourth Amendment.” Aplt. 

App. at 247. The officers appeal, arguing that the district court erred in denying their 

motion to dismiss because they are entitled to qualified immunity. 

III. Preliminary Issues

The officers argue that since Mr. Rathbun’s particularity argument was not 

included in the amended complaint, it is not properly before the court. The district 

court observed that the search warrant was attached to the amended complaint and 

held that an amendment to the complaint was not required “to add to the legal 

argument that [the warrant] is invalid because that’s part of the complaint.” Dist. Ct. 

Dkt. #103, at 13. The court may consider an additional legal theory asserted in 

 4

 The officers also asserted that the amended complaint failed to 

specifically allege the personal involvement of each defendant, instead relying on 

collective allegations against all defendants. Given our conclusion that the 

defendants are entitled to qualified immunity, we need not address this argument. 

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response to a motion to dismiss if it is “consistent with the facts and theories 

advanced in the complaint.” Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 

2001). We conclude that Mr. Rathbun’s “general warrant” theory was consistent 

with the facts and theories raised in the amended complaint and the district court 

properly considered it. 

 The district court dismissed Mr. Rathbun’s claims that were based on the 

alleged material misrepresentations of an incredible informant. Because Mr. Rathbun 

has not filed a cross appeal from this ruling, it is not before us. See Peterson v. 

Jensen, 371 F.3d 1199, 1201 n.2 (10th Cir. 2004) (declining to consider issues the 

district court decided in favor of the appellant, but not cross-appealed by the 

appellee). 

IV. Qualified Immunity 

 “The doctrine of qualified immunity protects government officials from 

liability for civil damages insofar as their conduct does not violate clearly established 

statutory or constitutional rights of which a reasonable person would have known.” 

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). 

Qualified immunity “gives government officials breathing room to make reasonable 

but mistaken judgments,” and “protects all but the plainly incompetent or those who 

knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 2085 

(2011) (internal quotation marks omitted). “Whether an official protected by 

qualified immunity may be held personally liable for an allegedly unlawful official 

action generally turns on the objective legal reasonableness of the action, assessed in 

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light of the legal rules that were clearly established at the time it was taken.” 

Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012) (brackets and internal 

quotation marks omitted). “[Q]ualified immunity is an immunity from suit rather than 

a mere defense to liability. [I]t is effectively lost if a case is erroneously permitted to 

go to trial.” Brown v. Montoya, 662 F.3d 1152, 1161 (10th Cir. 2011) (ellipsis and 

internal quotation marks omitted). “This Court reviews de novo the district court’s 

decision on a motion to dismiss under Fed. R. Civ. P. 12(b)(6) based on qualified 

immunity.” Denver Justice & Peace Comm., Inc. v. City of Golden, 405 F.3d 923, 

927 (10th Cir. 2005). Similarly, “[t]his court reviews de novo whether the warrant at 

issue is sufficiently particular.” United States v. Cooper, 654 F.3d 1104, 1126 

(10th Cir. 2011) (internal quotation marks omitted). 

V. Particularity Requirement

The Fourth Amendment requires not only that warrants be supported by 

probable cause, but that they “particularly describ[e] the place to be searched, and the 

persons or things to be seized.” U.S. Const. Amend. IV. “A description is 

sufficiently particular when it enables the searcher to reasonably ascertain and 

identify the things authorized to be seized.” United States v. Pulliam, 748 F.3d 967, 

972 (10th Cir. 2014) (internal quotation marks omitted). “Even a warrant that 

describes the items to be seized in broad or generic terms may be valid when the 

description is as specific as the circumstances and the nature of the activity under 

investigation permit.” Cooper, 654 F.3d at 1126 (internal quotation marks omitted). 

Moreover, “the warrant may cross-referenc[e] other documents, such as an affidavit” in 

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support of the application, “to satisfy the particularity requirement.” Id. (citation 

omitted). 

VI. Discussion

 The officers challenge the district court’s denial of qualified immunity based 

on the court’s view that the warrant was a general warrant. We need not decide 

whether the search warrant met the Fourth Amendment’s particularity requirement 

because we conclude that the officers “are entitled to immunity from damages, even 

assuming that the warrant should not have been issued,” Messerschmidt, 132 S. Ct. 

at 1244. As noted, a neutral magistrate issued the search warrant for Mr. Rathbun’s 

property. “Where the alleged Fourth Amendment violation involves a search or 

seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is 

the clearest indication that the officers acted in an objectively reasonable manner or, 

as we have sometimes put it, in ‘objective good faith.’” Id. at 1245 (quoting United 

States Leon, 468 U.S. 897, 922-23 (1984)). 

Issuance by a neutral magistrate, however, “does not end the inquiry into 

objective reasonableness. Rather [the Court has] recognized an exception allowing 

suit when ‘it is obvious that no reasonably competent officer would have concluded 

that a warrant should issue.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 

(1986)). But “the threshold for establishing this exception is a high one,” because a 

police officer ordinarily “cannot be expected to question the magistrate’s 

[particularity] determination [given that] it is the magistrate’s responsibility to 

determine whether the [warrant is sufficiently particular] and, if so, to issue a warrant 

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comporting in form with the requirements of the Fourth Amendment.” Id. (brackets 

and internal quotation marks omitted). 

 Mr. Rathbun contends that the warrant’s broad language authorizing the 

officers to seize any vehicle that appeared to be stolen could apply to any vehicle at 

all. Likewise, he argues that the warrant’s language authorizing a search for and 

seizure of any items that may be removed from a vehicle, such as cameras and 

wallets, could apply to any such item. Thus, he argues that no reasonably competent 

officer would have concluded that the warrant met the particularity requirement. 

As set forth above, the affidavit in support of the search warrant indicated that 

Mr. Rathbun’s business and adjoining lot were being used to receive and store stolen 

vehicles, and that items from the stolen vehicles were taken into the building. Under 

these circumstances, even if the scope of the warrant were overbroad in authorizing a 

search for vehicles and other items not specifically described, it would not have been 

unreasonable for an officer to conclude that the warrant authorized them to search for 

and seize stolen vehicles. The officers could reasonably have concluded that the 

warrant was sufficiently particular, even though it described the items to be seized in 

broad or generic terms, given the nature of the crimes under investigation. See 

Cooper, 654 F.3d at 1127 (stating “whether a search warrant is sufficiently particular 

depends in part on the nature of the crimes being investigated,” and holding that 

“[w]arrants relating to more complex and far-reaching criminal schemes may be 

deemed legally sufficient even though they are less particular than warrants 

pertaining to more straightforward criminal matters”); United States v. Shoffner, 

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826 F.2d 619, 631 (7th Cir. 1987) (holding that a specific description of vehicles to 

be seized was not required in a “continuing criminal scheme involving stolen 

automobiles”); cf. Messerschmidt, 132 S. Ct. at 1246 (holding that “[e]ven if the 

scope of the warrant were overbroad in authorizing a search for all guns when there 

was information only about a specific one,” under the circumstances, “it would not 

have been unreasonable for an officer to conclude that there was a fair probability 

that the [described gun] was not the only firearm [the accused] owned” (internal 

quotation marks omitted)). 

In addition, it would be objectively reasonable for an officer to assume that 

stolen vehicles would be moved in and out of Mr. Rathbun’s property fairly quickly, 

and that a stolen vehicle could be processed through his business before it was 

reported stolen and made part of a search-warrant request. Cf. New York v. Burger, 

482 U.S. 691, 710 (1987) (addressing administrative inspections, noting that “stolen 

cars and parts often pass quickly through an automobile junkyard”). Therefore, it 

was not unreasonable for the officers to assume that the search warrant met the 

Fourth Amendment’s particularity requirement. 

 Mr. Rathbun also challenges as overbroad the search warrant’s authorization to 

search for and seize computers, cameras, cell phones, digital or magnetic storage 

devices, controlled substances, and drug implements. Detective Lietz’s affidavit 

included a report that an arrestee had received a fictitious temporary vehicle permit 

from Mr. Rathbun and that he made counterfeit permits for stolen vehicles. Further, 

a confidential informant had reported that Mr. Rathbun concealed drugs on top of the 

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rolling garage door at his business. Ms. Lane provided Detective Lietz with the 

following information: (1) she had seen Mr. Rathbun cooking methamphetamine on 

the premises and using it with his employees and others, (2) she had seen 

photographs of Mr. Rathbun having sex with a teenaged girl, (3) Mr. Rathbun 

produced temporary permits to put on vehicles located at his business; (4) she had 

been to the premises within three weeks of her report to police and nothing had 

changed from previous visits, and (5) Mr. Rathbun lived at the business so his 

belongings, including the drugs, photos, videos, and computers containing scans of 

counterfeit temporary vehicle permits, would be kept there. 

 The affidavit in support of the search warrant described several illegal 

activities, such as creating counterfeit documents for stolen vehicles and taking 

sexually explicit photos of underage girls, for which evidence is likely to be found in 

computers, cameras, cell phones, and digital or magnetic storage devices. Similarly, 

the affidavit alleged that Mr. Rathbun was cooking, storing, and using 

methamphetamine and providing it to his employees. Therefore, even if the scope of 

the warrant were overbroad in authorizing a search for controlled substances and any 

types of computers or other electronic equipment that could be used to record or store 

images, it would not have been unreasonable for an officer to conclude that the 

warrant authorized them to search for and seize those items. Cf. United States v. 

Potts, 586 F.3d 823, 833 (10th Cir. 2009) (“[W]e have recognized that a computer 

search may be as extensive as reasonably required to locate the items described in the 

warrant.” (internal quotation marks omitted)); United States v. Janus Indus., 48 F.3d 

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1548, 1554 (10th Cir. 1995) (“The type of criminal activity under investigation in the 

present case—a drug paraphernalia business—makes it difficult to list with great 

particularity the precise items desired to be seized which evidence such activity.”). 

Moreover, the affidavit reflects that Detective Lietz sought and obtained 

approval of the warrant application from a deputy district attorney before submitting 

it to the magistrate. This “provides further support for the conclusion that an officer 

could reasonably have believed that the scope of the warrant was [not overbroad].” 

Messerschmidt, 132 S. Ct. at 1249. 

VII. Conclusion 

 The issue is not whether the magistrate erred in believing the search warrant he 

issued met the Fourth Amendment’s particularity requirement, but instead whether 

the magistrate “so obviously erred that any reasonable officer would have recognized 

the error.” Messerschmidt, 132 S. Ct. at 1250. We conclude that the warrant in this 

case “was not so obviously lacking in [particularity] that the officers can be 

considered plainly incompetent for concluding otherwise.” Id. (internal quotation 

marks omitted). “Indeed, a contrary conclusion would mean not only that [the 

officers] were plainly incompetent, but that . . . the deputy district attorney[] and the 

magistrate were as well.” Id. at 1249 (citation and internal quotation marks omitted). 

The district court’s order denying the officers qualified immunity is reversed. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge 

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