Unpublished Disposition, 919 F.2d 144 (9th Cir. 1988)

MEMORANDUM^** 

Louis Gorenc appeals pro se the district court's order granting the defendants-appellees' motion for summary judgment and denying his motion for summary judgment in his 42 U.S.C. § 1983 action. Gorenc contends that the defendants violated his fourth amendment rights by subjecting him to a custodial interrogation and an unreasonable search of his home. We review de novo, see Kruso v. International Tel. & Tel. Co., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), and affirm.

"To make out a cause of action under section 1983, plaintiffs must plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes." Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988) (quotation omitted). Claims for fourth amendment violations are cognizable under section 1983. See Brower v. County of Inyo, 109 S. Ct. 1378, 1380 (1989); Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990).

At about 8:45 p.m. on April 6, 1988, Alice Milbrant, a neighbor of Gorenc, called the Pinal County Sheriff's Office complaining about a light shining in her window. Deputy Sheriff Niederstadt responded, arriving at Gorenc's house at about 10:10 p.m. Seeing lights shining at what appeared to be the rear of Gorenc's property, Niederstadt got out of his truck and walked to Gorenc's front door. Although the parties dispute the exact details of what happened next, it is undisputed that a heated discussion ensued regarding Niederstadt's authority to be on Gorenc's property. Niederstadt eventually left without taking action against Gorenc.

Gorenc contends that Niederstadt violated his rights by arbitrarily approaching his home without a reasonable suspicion that a crime was committed. The record shows, however, that Niederstadt was only following up on Milbrant's complaint about the light shining in her house. Gorenc's constitutional rights were not violated merely because Niederstadt knocked on Gorenc's door with the intent to ask questions. See United States v. Winsor, 816 F.2d 1394, 1397 (9th Cir. 1987) (citing Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964)).

Gorenc also contends that Niederstadt conducted an illegal search of his front porch. This contention lacks merit. The record only shows that after arguing with Gorenc, Niederstadt walked to the end of the porch and attempted to open a gate. Finding the gate locked, Niederstadt turned and left the porch and Gorenc's property. These facts do not suggest that Niederstadt searched Gorenc's front porch or any other part of his property. See United States v. Attson, 900 F.2d 1427, 1429-30 (9th Cir. 1990) (stating that the fourth amendment only applies to governmental conduct "that can be reasonably characterized as a 'search' or a 'seizure' ").

Finally, Gorenc contends that Niederstadt held him in custody in violation of the fourth amendment. According to Gorenc, Niederstadt had a threatening demeanor during the argument, and held a flashlight as if it were a club. He contends that he therefore did not feel free to leave.

"A person has been seized within the meaning of the fourth amendment if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Martinez v. Nygaard, 831 F.2d 822, 826 (9th Cir. 1987); see also United States v. Mendenhall, 446 U.S. 544, 554-55 (1980). A police officer's authoritative manner is a factor to consider in determining whether an unlawful arrest has occurred. See Martinez, 831 F.2d at 826; United States v. Patino, 649 F.2d 724, 727 (9th Cir. 1981). Thus, whether Niederstadt was threatening or belligerent towards Gorenc is a material fact.

It is undisputed, however, that Niederstadt did not physically touch Gorenc, or come any closer to him than three feet. At no time during the incident did Niederstadt reach for his gun or handcuffs. Niederstadt never told Gorenc that he was under arrest or couldn't leave. Gorenc never attempted to go back in the house while Niederstadt was there, even when Niederstadt asked him to. Gorenc even told Niederstadt to leave his property.

Considering all the circumstances of this case, we hold that Gorenc failed to raise a genuine issue of material fact as to whether he was seized in violation of the fourth amendment. Accordingly, because Niederstadt's actions do not constitute a seizure, the district court did not err in granting summary judgment for defendants. See Attson, 900 F.2d at 1429-30; Fed. R. Civ. P. 56(c).

AFFIRMED.