Steven FISHER, Plaintiff-Appellee, and Sandra Fisher, Plaintiff, v. CITY OF SAN JOSE, Defendant-Appellant, and City of San Jose Police Department; Officer Boler; Officer Barnett; Officer Correa; Officer Esquivel; Officer Honda; Officer Kinsworthy; Officer O‘Brien; Officer Ryan; Officer Nguyen, Defendants.
No. 04-16095.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 26, 2008. Filed March 11, 2009.
558 F.3d 1069
The petition for review is GRANTED in part, and DENIED in part.
Donald E.J. Kilmer, Jr., San Jose, CA, for plaintiff-appellee.
Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, STEPHEN REINHARDT, DIARMUID F. O‘SCANNLAIN, PAMELA ANN RYMER, SIDNEY R. THOMAS, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, JAY S. BYBEE, and N. RANDY SMITH, Circuit Judges.
TALLMAN, Circuit Judge:
We address the Fourth Amendment‘s exigent circumstances doctrine in the context of armed standoffs. Steven Fisher triggered a standoff with San Jose police after he pointed a rifle at a private security guard who was investigating loud noises in Fisher‘s apartment complex. When the police arrived at his apartment, a noticeably intoxicated Fisher pointed one of his eighteen rifles at the officers and threatened to shoot them. The ensuing standoff lasted more than twelve hours and ended peacefully when Fisher finally emerged and allowed himself to be taken into custody. We hold that Fisher‘s civil rights were not violated when police arrested him without a warrant.
We consider whether sufficient evidence supports the jury‘s verdict. We believe so, and in reaching this conclusion, we take the opportunity to clarify our jurisprudence relating to the Fourth Amendment‘s application to armed standoffs. We hold that, during such a standoff, once exigent circumstances justify the warrantless seizure of the suspect in his home, and so long as the police are actively engaged in completing his arrest, police need not obtain an arrest warrant before taking the suspect into full physical custody. This remains true regardless of whether the exigency that justified the seizure has dissipated by the time the suspect is taken into full physical custody. We therefore reverse the district court and remand with directions to reinstate the jury‘s verdict and enter judgment in favor of the police.
I
A
We recount the evidence in the light most favorable to support the verdict rendered. See Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1161 (9th Cir. 1997). Fisher began the evening of October 23, 1999, in his apartment, drinking beer, watching the World Series on television, and cleaning his collection of eighteen bolt-action World War I and II era rifles. When the game ended, Fisher continued cleaning his weapons and drinking his way through the two cases of beer he had purchased earlier that day. From time to time, Fisher took a break to read from a book entitled The Second Amendment Primer.
Fisher lived on the ground floor of the Tradewinds apartment complex in San Jose, California. The living room of his ground-floor apartment had two sliding glass doors which opened onto a small patio. The patio, which was surrounded by a low wall, looked out onto a common lawn area. A person standing in the common lawn area could look through the sliding glass doors and into Fisher‘s living room.
At about 1 a.m., Leonel Serrano, a uniformed security guard employed by Fisher‘s apartment complex, was patrolling the grounds of the complex when he heard loud music coming from the apartment above Fisher‘s. Serrano climbed the stairs and knocked on the door. When he heard no answer, he descended and called his supervisor, who apparently notified the police. At some point, Fisher, who was sitting in his living room working on one of his rifles, glimpsed Serrano standing in the common lawn area near Fisher‘s patio. Fisher approached Serrano carrying a rifle.
Serrano asked Fisher if he knew his upstairs neighbors and whether they were home. Rather than answering Serrano‘s questions, Fisher asked Serrano why he wanted to know that information, and told
When Serrano informed Fisher that the police had already been called on account of the noise, Fisher‘s tone became aggressive. He began ranting about the Second Amendment, and that, in Fisher‘s view, it guaranteed the right to bear arms and to defend oneself and one‘s property. Although Serrano was not close enough to smell alcohol on Fisher‘s breath, Serrano nevertheless believed Fisher to be drunk based on his slurred speech, his decision to embark on an unprovoked exposition on the Second Amendment, and his bizarre and unresponsive answers to Serrano‘s questions. For example, Fisher first described his upstairs neighbors as nice people, later as vampires, then as nice people again.
As Fisher became more agitated, he shifted the position of the rifle such that it was pointing either at Serrano or in Serrano‘s direction.2 Serrano, fearing for his safety, quickly left the area in front of Fisher‘s apartment and reported the confrontation to his supervisor, who placed another call to the police, this time describing a “suspicious person with a weapon.” Eight officers were initially dispatched to the Tradewinds apartment complex.
Patrol Sergeant Laurence Ryan, who arrived at 1:50 a.m., was first on the scene. After hearing Serrano describe his encounter with Fisher, Sergeant Ryan assigned the other responding officers to take up positions around Fisher‘s apartment in order to form a containment perimeter. The officers concealed themselves so as not to become easy targets in the event that Fisher began shooting.
Sergeant Ryan then attempted to get Fisher‘s attention, first by calling his name, then by throwing small rocks at his sliding glass doors. Fisher eventually emerged onto his patio. Sergeant Ryan explained to Fisher why the police had been called. Fisher, still noticeably intoxicated, lapsed into a rambling, belligerent diatribe about his Second Amendment rights, and threatened to shoot Sergeant Ryan if he came on or near Fisher‘s property. Fisher also told Sergeant Ryan about the eighteen guns inside his apartment. After about ten minutes of yelling at Sergeant Ryan, Fisher retreated inside.
Fisher‘s threats, combined with his intoxication, his guns, and his generally irrational behavior prompted Sergeant Ryan to call for additional help. As more officers arrived, they continued to secure the perimeter around Fisher‘s apartment and to remove his neighbors from any lines of fire. Ultimately, more than sixty San Jose officers were deployed in the standoff.
Sergeant Ryan attempted to re-establish contact with Fisher by calling his apartment. His wife, Sandra Fisher, answered the phone and agreed to come outside. She told Sergeant Ryan that Fisher now was alone in the apartment, that he had eighteen rifles, and that he was extremely intoxicated.
Officer Derrick Boler was one of the San Jose police officers forming the perimeter around Fisher‘s house. He was positioned across the street from Fisher‘s apartment behind a parked car, where he remained for about four and one-half hours as the
Between 3:15 and 3:20 a.m., Officer Jan Males, a tactical negotiator, arrived on the scene and tried unsuccessfully to start a dialogue with Fisher, who continued going on about his right to bear arms and vowing never to relinquish his weapons. At one point, Fisher invited Officer Males into his apartment, but then stated he would shoot or kill her if she entered. Officer Males testified that she believed Fisher‘s statements to be a criminal threat and a felony offense under the
At 7:00 a.m., the San Jose Police Department‘s Mobile Emergency Response Group and Equipment (“MERGE“) unit assumed tactical control of the police effort to end the standoff. Members of the MERGE team replaced most of the patrol officers who had maintained the inner perimeter since the inception of the incident. Some of the departing patrol officers returned to the police station to fill out police incident reports.
Over the next several hours, the MERGE team tried several methods to establish communication with Fisher and resolve the standoff: they used bullhorns and other voice magnifying equipment; they shut off the electrical power; they drove an armored vehicle with its siren activated onto the grass in front of his patio; and they threw a “throw phone”3 onto the patio. When those techniques failed to induce Fisher to surrender, the MERGE unit detonated a flash-bang device, and, on two occasions, they shot canisters of tear gas into his apartment. Nothing worked to dislodge Fisher from his home.
The standoff entered its final stage at about 2:15 p.m., more than twelve hours after it had begun. Fisher spoke by phone for several minutes with a tactical negotiator, and finally agreed to leave his apartment. He was told to walk toward the officers with his hands above his head, then to lie on the ground. He initially took several steps but suddenly stopped and turned back toward his apartment. At that point, a member of the MERGE unit shot Fisher in the leg with a non-lethal rubber bullet. Fisher then surrendered and was finally taken into police custody. It was undisputed at trial that no attempt was made at any point during the standoff to obtain an arrest warrant.
Fisher was tried for felony violations of
Fisher and his wife subsequently filed an action under
The case was tried to a civil jury. After the presentation of all of the evidence, Fisher moved for judgment as a matter of law under
The police appealed the district court‘s ruling. On January 16, 2007, a three-judge panel of our court affirmed, with one judge dissenting. Fisher v. City of San Jose, 475 F.3d 1049 (9th Cir. 2007). On November 20, 2007, that opinion was withdrawn and replaced by an amended opinion, which again, by a two-to-one margin, affirmed the district court. Fisher v. City of San Jose, 509 F.3d 952 (9th Cir. 2007). On March 14, 2008, we ordered the case to be reheard en banc, and vacated the decision of the three-judge panel. We now reverse.
II
We review de novo the district court‘s decision to grant Fisher‘s renewed motion for judgment as a matter of law. See Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1226-27 (9th Cir. 2001). The question we must answer is whether, construing the evidence in the light most favorable to the police, the jury‘s defense verdict was supported by substantial evidence. Id. at 1227. “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.‘” Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1014 (9th Cir. 1985) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). In making this determination, we must take care not to substitute our view of the evidence for that of the jury. Johnson, 251 F.3d at 1227.
“[W]hen reviewing a motion for judgment as a matter of law, we apply the law as it should be, rather than the law as it was read to the jury,” even if the party did not object to the jury instructions. Pincay v. Andrews, 238 F.3d 1106, 1109 n. 4 (9th Cir. 2001) (citing Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d 176, 181-83 (9th Cir. 1989)).
III
A
In order to frame the precise issue before us, we begin by noting several important legal issues about which the parties are in agreement. First, the police concede that even though Fisher was technically taken into custody outside his apartment, he was, for legal purposes, seized inside his home, and, as such, the burden is on the police to show either that they
Second, Fisher concedes that there was probable cause to arrest him. The civil jury was presented with several possible crimes Fisher may have committed, and, by concluding that Fisher‘s warrantless arrest was justified, the jury necessarily found that a reasonable police officer would have had probable cause to believe Fisher committed at least one of those crimes. See Bailey v. Newland, 263 F.3d 1022, 1032 (9th Cir. 2001) (“It is clearly established Federal law that the warrantless search of a dwelling must be supported by probable cause and the existence of exigent circumstances.” (citing Payton v. New York, 445 U.S. 573, 587-90 (1980))). Ample evidence existed to establish probable cause that Fisher had violated
Third, Fisher concedes that exigent circumstances existed to arrest him before 6:30 a.m., the last time he was seen holding a gun. Exigent circumstances are defined to include “those circumstances that would cause a reasonable person to believe that entry ... was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” United States v. Lindsey, 877 F.2d 777, 780 (9th Cir. 1989) (quoting United States v. McConney, 728 F.2d 1195, 1199 (9th Cir. 1984) (en banc)). Before that time, Fisher was seen pointing a rifle at Officer Males and Sergeant Ryan, loading his rifles, and arranging them strategically throughout his apartment to repel any entry the police might have attempted. Fisher does not dispute that up until 6:30 a.m., police could have lawfully entered his apartment, using force if necessary, to complete the arrest.
B
We now turn to the points on which the parties do not agree. According to Fisher, the only reasonable conclusion supported by the evidence is that the exigency that existed before 6:30 a.m. dissipated after that time, thus rendering his continued seizure and the completion of his arrest unreasonable under the Fourth Amendment.4 Implicit in Fisher‘s argument is the
We reject this premise. Not only does it buckle under the weight of Supreme Court caselaw and that of our own circuit, but it further complicates the already complex and dangerous process of safely resolving armed standoffs, without providing any meaningful Fourth Amendment protection. We conclude that once exigent circumstances and probable cause justified Fisher‘s seizure, police were not required to obtain an arrest warrant despite the fact that they did not take Fisher into full physical custody until hours later.
1
In Michigan v. Tyler, 436 U.S. 499 (1978), a fire chief arrived at the scene of a suspicious blaze just as firefighters finished extinguishing it. He entered the gutted building and tried to determine the cause of the fire. Id. at 501-02. After determining that an arsonist may have started the conflagration, the chief called a police detective to the scene, who arrived one and one-half hours later. Id. at 502. The detective searched the building for several minutes but could not complete his search due to lingering smoke and steam. Id. The next morning, the fire chief returned to the scene with an assistant fire chief, and, together with the police detective, they scoured the building and collected evidence of the fire‘s origin. Id. There was neither consent nor a warrant for any of these searches or seizures. Id.
The Supreme Court upheld the warrantless searches and seizures. The Tyler Court rejected as “unrealistically narrow” the Michigan Supreme Court‘s conclusion that the exigency which justified the initial entry ends “with the dousing of the last flame.” Id. at 510. The Court reasoned that the return of fire officials and the police detective the following morning was justified because it was “no more than an actual continuation” of the initial entry. Id. at 511. In other words, although the return to the crime scene may not, by itself, have satisfied the exigency requirement, the return
Although Tyler did not involve the search of a home, our own caselaw has applied Tyler in such a context. In United States v. Echegoyen, 799 F.2d 1271 (9th Cir. 1986), police officers responded to a call of a strange smell emanating from a house. One officer determined the smell to be ether, a flammable gas sometimes used to process cocaine. Id. at 1274. The officers entered the house without a warrant and arrested several suspects, one of whom was the defendant. Id. Moments later, the officers, joined by a firefighter, re-entered the house to eliminate the fire hazard and inspect the residence. Id. They discovered cocaine and drug processing equipment. Id. The officers and firefighters then left the residence and requested that narcotics agents be sent to the scene to take over the investigation. Id. When the agents arrived, they entered the home again, looked around, and left to obtain a warrant. Id.
We upheld the legality of all three warrantless entries. As in Tyler, the first entries were justified by exigent circumstances. The subsequent entry by narcotics officers after the threat of fire had been diffused and after the house had been cleared of all occupants — akin to the subsequent entry the next day in Tyler — was justified as a continuation of the initial lawful entry and exigency. Id. at 1280 (“Consequently, this ... entry was merely a continuation of the initial entry because both were done to alleviate the exigent circumstances.“).
Applying Tyler and Echegoyen to the present case, we conclude that when Fisher was seized at the beginning of the standoff, the officers were not required to periodically reassess whether the exigency persisted throughout the standoff because the standoff was “no more than an actual continuation” of the initial seizure. As in Echegoyen, the entirety of the standoff was “done to alleviate the exigent circumstances” that precipitated it. See Bing ex rel. Bing v. City of Whitehall, 456 F.3d 555, 565 (6th Cir. 2006) (“Exigent circumstances terminate when the factors creating the exigency are negated.“).5 Moreover, the exigent circumstances that precipitated the initial seizure did not materially change from the beginning of the standoff to the end.
This armed standoff was a single Fourth Amendment event, a continuous process of formalizing Fisher‘s arrest that began in the early morning hours of October 24. The police maintained a secure perimeter around Fisher‘s apartment, and Fisher refused to surrender. Fisher threatened the officers shortly after they arrived, and retained full control of his eighteen guns and ammunition until the end. The entire standoff was an uninterrupted, fluid engagement between Fisher and the police. See id. (holding that, in an armed standoff, “the exigency did not terminate due to the passage of time because Bing was at all times dangerous” (citing Tyler, 436 U.S. at 510)).
The mere fact that Fisher was not seen with a weapon after 6:30 a.m. is not the sort of break in the action that would
2
Fisher‘s own criminal behavior caused the exigency that excused the Fourth Amendment warrant requirement to which he was otherwise entitled for an in-home arrest. Even Fisher admits that when he pointed his gun at the officers and threatened to shoot them, the police were, at that moment, entitled to enter his home, using force if necessary, to complete his arrest. Fisher offers no support for the proposition that, after officers lawfully seized him in his home, they nevertheless were required to subsequently seek and obtain a warrant before taking him into full physical custody. We see no reason to depart from Tyler and Echegoyen in this case. Quite to the contrary, we find the reasoning especially compelling in connection with armed standoff situations.
Requiring police in this type of siege environment to obtain an arrest warrant for Fisher, a person who is already under arrest but not yet in full physical custody, serves no practical purpose. Given that police had ample probable cause to arrest Fisher for felonies committed in their presence, any warrant obtained by the police would have merely authorized them to do exactly what they were already doing, and indeed, exactly what they were already authorized to do: surround Fisher‘s home and attempt to neutralize the threat that he posed by arresting him.6 We do not see what a neutral and detached magistrate would have added in helping to peacefully effect Fisher‘s arrest.
Fisher is unable to clearly define what the Fourth Amendment allegedly required (or should require) the police to ask of the magistrate judge in the instant case. There is no support for the position that, after Fisher had been lawfully seized in his apartment, the Fourth Amendment required the police to retroactively justify the arrest to a magistrate judge by asking for an arrest warrant that had in effect already been executed. In fact, asking the magistrate judge to determine whether probable cause justified the initial seizure when police first surrounded Fisher‘s residence or justifies his continued seizure amounts to the retroactive warrant practice that we have condemned. See United States v. Allard, 634 F.2d 1182, 1187 (9th Cir. 1980) (observing that “post hoc justifications [for searches and seizures] are alien to the Fourth Amendment warrant and reasonableness requirements“).7
In addition, Fisher‘s dissipation theory would have serious consequences beyond simply forcing police to engage in the empty gesture of obtaining a warrant in the midst of a dangerous and volatile standoff. It would introduce yet another element of uncertainty into the already complex and dangerous calculus confronting law enforcement in armed standoff situations. At minimum, the officers on the scene would be unable to devote their full attention to the actual threat and to ensuring public safety. Police would be forced to ponder with each passing moment whether the exigency justifying the warrantless arrest that existed at the start of the standoff had sufficiently dissipated such that they must immediately divert one or more officers from the task of resolving the standoff to the time-consuming project of obtaining a warrant. As we have recognized, “[o]btaining a telephonic warrant is not a simple procedure; among other things, a duplicate original warrant must be prepared in writing and read to the magistrate verbatim. The only step that is saved is the trip to the magistrate‘s office.” United States v. Good, 780 F.2d 773, 775 (9th Cir. 1986) (internal quotation marks and brackets omitted).
The imposition of such an amorphous dissipation element would also needlessly restrict law enforcement‘s ability to quickly and effectively adjust tactics based on the evolving events on the scene, placing lives in danger. Officers would second-guess themselves, particularly because the ultimate decision whether the exigency had sufficiently dissipated — and, in turn, whether the warrant requirement had resurrected — would be made months if not years later by a jury or a judge from the confines of a courtroom, far removed from the stresses of the armed standoff. We are hard pressed to see any public benefit should overly cautious officers pass up a clear opportunity to peacefully resolve a dangerous situation that might present itself in the midst of a pending, but not yet approved, warrant request. Nor do we see the logic in condoning a scheme that exposes police to civil liability when, as here, they elect to methodically respond to dangerous standoffs, but affords officers greater protection from liability if they hastily force entry with guns blazing.
Further, the dissent‘s proposed warrant application, when coupled with the erroneous notion that each entry into a residence constitutes a wholly distinct Fourth Amendment intrusion requiring either a warrant or independent exigent circumstances, as discussed infra, would perversely create a safe harbor period for armed suspects barricaded in their homes. Armed not only with weapons but also with the knowledge that, as long as they refrained from more openly hostile behavior, law enforcement could do nothing beyond containment without securing a warrant, suspects would reap a tactical advantage in standoff situations. Fisher, for instance, used his time during the incident to load and strategically place weapons around his home to frustrate anticipated forcible entry by officers.
Finally, to rule in Fisher‘s favor would reward his recalcitrance. We reject the notion that trained officers, who put themselves in harm‘s way when handling a dangerous armed standoff, essentially increase the constitutional rights of suspects who, by their actions, both provoke and prolong the need for continuing police action. To adopt his novel Fourth Amendment theory encourages other suspects to barricade themselves in their residences, fortify their positions, and resist full arrest as the mere passage of time would serve as fodder for a suppression motion at the ensuing criminal trial or, as here, for a civil rights action seeking money damages from the police. The direct and foreseeable consequence will be prolonged standoffs, better equipped assailants, and heightened risk to all involved. The suggestion that imposing a warrant requirement on police already engaged in an armed standoff will diminish the risk to public safety, see, e.g., Reinhardt Dissent at 1097, defies common sense.
In sum, we adhere to the established principle that once there is a lawful warrantless seizure of a suspect based on probable cause and exigent circumstances, no constitutionally mandated role remains for the magistrate judge. A court can certainly later examine the officers’ actions in connection with challenges to the basis for probable cause, and discharge the defendant from criminal prosecution if evidence is lacking. A civil rights suit may be pursued for using excessive force. But suggesting that a magistrate judge should be telling police in the middle of the standoff that they must withdraw or what tactics are permissible does not strike us as a reasonable role for a judicial officer under the Fourth Amendment.
b
Judge Reinhardt, in dissent, speculates that the creation of a mid-standoff warrant requirement would “help[] ensure that high-stakes standoffs occur only when legally proper” because a mid-event review by a magistrate might allow a standoff to terminate peacefully before police escalate their efforts. Id. at 1097. Such optimism is unfounded and, in any event, alien to the Fourth Amendment. Fisher‘s armed standoff, like all armed standoffs, did not miraculously arise. Rather, the incident at issue was a product of his own creation and persisted at his sole discretion. It is undisputed that Fisher‘s criminal sets and his unwillingness to surrender, combined with his bizarre and dangerous conduct, triggered the armed besiegement. As the jury properly concluded on the evidence introduced at trial, his warrantless seizure was lawfully based on probable cause and exigent circumstances. His actions throughout were anything but peaceful.
The dissent does not recognize that we are dealing with an unrestrained, armed suspect who poses a continuing public safety risk — not a compliant arrestee or innocent homeowner.8 We are respectful of the sanctity of one‘s home but disagree with the notion that police are constitutionally required to withdraw from an active armed standoff, leaving neighbors to deal with an unstable and well-armed suspect. After all, police are sworn to resolve dangerous situations by restoring the peace. Brigham City v. Stuart, 547 U.S. 398, 406 (2006) (“The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties.“). Furthermore, threatening to shoot police officers constitutes separate criminal behavior that establishes probable cause for arrest independent of the initial offense. Under these circumstances, due to the suspect‘s dangerous actions in resistance to arrest, the constitutional balance must be resolved by approving police efforts to neutralize the substantial threat arising from the armed standoff. The Fourth Amendment does not grant amnesty. But the dissent‘s theory would.
Simply put, imposing an ongoing warrant requirement upon officers engaged in an armed standoff creates an unprecedented hurdle to apprehending armed suspects and resolving an existing dangerous situation. It would not serve the public good, as the dissent reasons. Rather, it would impede swift resolution of dangerous circumstances by erecting an unreasonable legal obstacle of questionable value that only encourages the kind of judicial second-guessing the Supreme Court has repeatedly condemned. “Reasonableness” remains the touchstone under the Fourth Amendment. Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977). As the Court trenchantly observed in Graham v. Connor, 490 U.S. 386, 397-98 (1989), “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving.” Accord Saucier v. Katz, 533 U.S. 194, 204-05 (2001); County of Sacramento v. Lewis, 523 U.S. 833, 853 (1998).
We turn to the dissent‘s contention that the warrant requirement was resurrected at approximately 7 a.m. when the first responding officers returned to the station house after the MERGE team arrived to relieve them, and that each attempt thereafter to dislodge Fisher from his fortification was a distinct intrusion upon Fisher‘s Fourth Amendment rights. Reinhardt Dissent at 1090-91; accord Paez Dissent at 1087 n. 1. This argument, which departs significantly from Fisher‘s dissipation theory, fails at its inception. The presence of exigent circumstances at the time of the warrantless seizure is undisputed in this case. The subsequent passage of time, which includes consideration of what officers might have done thereafter, is legally irrelevant with respect to the warrant requirement. See United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985) (noting that exigent circumstances are viewed from the totality of the circumstances known to officers at the time of the warrantless action).
Fundamental to the dissent‘s theory is the flawed presumption that each entry constitutes a legally distinct Fourth Amendment intrusion that required either a warrant or independent exigent circumstances at the moment such entry occurs. Reinhardt Dissent at 1091. While the police concede that sometime after returning to the station house officers could have obtained a warrant to arrest the already-seized Fisher, it does not follow that police were therefore constitutionally required to do so. The Supreme Court has never intimated such a rigid rule; nor have we. See United States v. Turvin, 517 F.3d 1097, 1103 (9th Cir. 2008) (“The Supreme Court has ‘consistently eschewed bright-line rules [in the Fourth Amendment context], instead emphasizing the fact specific nature of the reasonableness inquiry.‘” (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996))).
We agree that the home is perhaps the most sacrosanct domain, where one‘s Fourth Amendment interests are at their zenith. See LaLonde v. County of Riverside, 204 F.3d 947, 954 (9th Cir. 2000). But that general principle does not legitimize the dissent‘s extreme position that each and every entry by police into a suspect‘s home, in whatever form and regardless of the surrounding circumstances, amounts to “a violation of the sanctity and privacy of a suspect‘s home[and therefore] intrudes separately upon the suspect‘s Fourth Amendment rights.” Reinhardt Dissent at 1091. The law is quite clearly otherwise. See, e.g., Echegoyen, 799 F.2d at 1280. The Fourth Amendment, by its very language, protects “[t]he right of the people to be secure in their ... houses ... against unreasonable searches and seizures.”
Tyler and Echegoyen are controlling here. Judge Reinhardt‘s attempt to confine the application of this precedent to public safety concerns arising from fire hazards is neither persuasive nor sensible. See Reinhardt Dissent at 1094 (“Because Echegoyen, like Tyler, involved an entry
Notwithstanding the dissent‘s misreading, these cases conclusively demonstrate that once exigent circumstances were established to justify warrantless action, the passage of time as Fisher obstinately rebuffed officers’ efforts to effectuate his full arrest did not rejuvenate the warrant requirement. There was arguably time and personnel available in the cited cases to seek a warrant. But, as here, none was required. The common thread through Tyler, Echegoyen, and Fisher‘s case is that the warrant requirement remains excused at least as long as the purpose for the original action persists and so long as the subsequent actions continue toward that purpose. This is unequivocally clear in Tyler where the Court held that entry onto the premises the following day to continue the initial warrantless search and
The Court‘s analysis in Tyler and ours in Echegoyen focused on the nexus between the challenged entries and the original exigency that prompted the warrantless action — not on whether, in hindsight, officers had sufficient time to obtain a warrant in the interim before the subsequent warrantless entries occurred. See also Bing, 456 F.3d at 565 (“The passage of time did not terminate the exigency because the ticking of the clock did nothing to cut off Bing‘s access to his gun, or cure him of his willingness to fire it ...“). The dissent‘s proposed view is simply not the law; nor should it be.9
It would strain credulity to contend that the MERGE team‘s actions after 7 a.m. were “clearly detached” from the danger Fisher posed or his warrantless seizure. This armed standoff was a single, ongoing event, and, as discussed supra, Fisher at all times remained armed and dangerous.
The dissent claims that our opinion purports to “immunize” police action from constitutional scrutiny and strip Fisher and similarly situated suspects of their Fourth Amendment rights. See, e.g., Reinhardt Dissent at 1091, 1092. We do no such thing. Nor does our holding presume that officers engaged in a standoff always reach the proper conclusion as to the legality of their actions. See id. at 1096. Nothing in today‘s opinion, for example, even hints at disturbing the Fourth Amendment requirement that the force, deadly or not, used in the course of arrest, investigatory stop, or other “seizure” of a person must satisfy the “objective reasonableness” standard. Graham, 490 U.S. at 396-97. To be clear, we do not suggest that the initial exigency and seizure thereafter condoned unfettered force to resolve the armed standoff, discharged all of Fisher‘s Fourth Amendment protections, or reduced in any way the probable cause needed to arrest. A court can certainly later examine the officers’ actions in connection with a suspect‘s subsequent criminal trial or a collateral civil rights suit for other alleged Fourth Amendment violations, as the jury did here.
Our holding fits squarely within existing Fourth Amendment jurisprudence and respects the jury‘s determination. We simply refuse to take the momentous constitutional leap proposed by Fisher and advocated by the dissent.10 As reasonableness is still the touchstone of Fourth Amendment analysis, an objective look at the totality of the circumstances supports the jury‘s conclusion that police acted properly without need to secure a warrant. See Brigham City, 547 U.S. at 404 (“An action is ‘reasonable’ under the Fourth Amendment ... as long as the circumstances, viewed objectively, justify the action.” (internal quotation marks and brackets omitted)). It is the need for taking immediate action in the face of rapidly evolving circumstances that the Supreme Court dictates must guide our reasonableness analysis under the Fourth Amendment.
In sum, the thrust of Judge Reinhardt‘s disapproval largely relates to what he considers increasingly intrusive police action employed by the MERGE team. Fisher had ample opportunity to present his Fourth Amendment excessive force claim and challenge the reasonableness of the tactics employed as part of this § 1983 action. The jury, however, rejected this claim and returned a verdict in favor of the police. That judgment is not on appeal. The narrow issue here is whether the mere passage of time resuscitates the formality of a warrant requirement during a continuing armed standoff situation when a warrant was initially excused by exigent circumstances. We hold it does not.
Applying this rule here, we have no trouble concluding that the evidence adduced at trial is legally sufficient to support the jury‘s verdict. Fisher precipitated an armed standoff with the police by pointing a gun at them and threatening to shoot. This behavior established exigent circumstances, which excused the need for a warrant, and gave police probable cause to arrest Fisher for several crimes. The fact that Fisher was not seen with a gun after 6:30 a.m. is immaterial. He remained at all times drunk, heavily armed, unpredictable, and dangerous. The standoff continued uninterrupted for over twelve hours while the police made successive attempts to resolve it. Under the rule we have announced today, once police had probable cause to arrest Fisher, and exigent circumstances excused the need for a warrant, they were not required to ponder whether the exigency continued as the armed standoff progressed. The police were justified in effectuating the arrest of Fisher, notwithstanding the mere passage of time.
In light of the jury‘s verdict and our legal determination that no warrant was required, the plaintiffs were not entitled to judgment against the City under the Monell standard, which governs when a municipality can be held liable under
REVERSED and REMANDED.
PAEZ, Circuit Judge, with whom PREGERSON, REINHARDT, and THOMAS, Circuit Judges, join, dissenting:
I can not agree with the majority‘s conclusion that substantial evidence supports the jury‘s verdict that Steven Fisher‘s Fourth Amendment rights were not violated when San Jose City police officers arrested him without a warrant at his home on October 24, 1999. The majority holds that Fisher‘s armed threats justified his warrantless arrest. The majority‘s analysis, however, is neither consistent with case law defining exigent circumstances, nor supported by the evidence, and effectively eliminates the need for law enforcement officers to obtain an arrest warrant when confronted with an armed standoff at a person‘s home.
To justify a warrantless seizure on the basis of exigent circumstances, the government must establish the factual basis for the exigencies and that there was no time to obtain a warrant before taking action to alleviate the exigencies. United States v. Good, 780 F.2d 773, 775 (9th Cir. 1986). In reversing the district court‘s Rule 50(b) judgment, the majority disregards the latter requirement. Here, although the City presented substantial evidence that the officers reasonably believed that Fisher posed a threat to them and others, it presented no evidence to show that the officers did not have time to obtain a warrant before seizing Fisher while he was inside his apartment. Because the City failed to make such a showing, I agree with the district court that there was insufficient evidence to support the jury‘s verdict on
I.
The Fourth Amendment, in part, protects “[t]he right of the people to be secure in their ... houses ... against unreasonable searches and seizures ...”
In applying this exception to the warrant requirement, we have defined exigent circumstances as those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts. United States v. McConney, 728 F.2d 1195, 1199 (1984) (en banc); see also United States v. Brooks, 367 F.3d 1128, 1133 n. 5 (9th Cir. 2004). “Exigent circumstances alone, however, are insufficient as the government must also show that a warrant could not have been obtained in time.” United States v. Good, 780 F.2d 773, 775 (9th Cir. 1986); see also United States v. Lai, 944 F.2d 1434, 1442 (9th Cir. 1991) (“Exigency necessarily implies insufficient time to obtain a warrant; therefore the Government must show that a warrant could not have been obtained in time.“); United States v. Howard, 828 F.2d 552, 555 (9th Cir. 1987); United States v. Echegoyen, 799 F.2d 1271, 1279 (9th Cir. 1986); United States v. Manfredi, 722 F.2d 519, 522 (9th Cir. 1983) (holding that as part of showing that a warrantless entry was “imperative,” the government must demonstrate “that a warrant could not have been obtained in time even by telephone under the procedure authorized by
For purposes of the Fourth Amendment analysis in this case, it makes no difference that the officers did not enter Fisher‘s apartment to take physical custody of him. We have long recognized that “it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home.” United States v. Johnson, 626 F.2d 753, 757 (9th Cir. 1980), aff‘d on other grounds, 457 U.S. 537 (1982); see also United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir. 1985) (holding that because defendant “only emerged under circumstances of extreme coercion, the arrest occurred while he was still inside his trailer.“). With these basic Fourth Amendment principles in mind, I turn to the merits of the City‘s appeal and explain why I can not agree with the majority.
II.
In the context of an armed standoff, the majority holds that as long as probable cause and exigent circumstances existed at the initial seizure the police are not required to assess whether the “exigency persisted throughout the standoff because the standoff was no more than an actual continuation of the initial seizure.” Maj. Op. at 1071 (internal quotation marks omitted). Under this rule, any dissipation of the exigencies before the person can be taken into full physical custody does not require the police to reassess the need for a warrant. Maj. Op. at 1075-76. Although I seriously question whether the majority‘s holding is supported by Michigan v. Tyler or United States v. Echegoyen, the cases on which the majority primarily relies, I would not, in light of the record, decide those issues here.1 In my view, because the City presented no evidence explaining why the officers did not have time to obtain a warrant when they seized Fisher at about 6:30 a.m., exigent circumstances did not exist and the warrantless seizure of Fisher violated the Fourth Amendment.2
I begin by noting that, for purposes of the Fourth Amendment, a seizure occurs October 24, the majority concludes that “[a] reasonable person would not believe that his freedom remained unimpaired after engaging in such aggressive conduct toward the police officers surrounding his apartment.” Maj. Op. at 1075-76 n. 4.
This analysis of the moment of seizure departs substantially from our Fourth Amendment jurisprudence. “A person is seized if ‘taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.‘” United States v. Washington, 490 F.3d 765, 769 (9th Cir. 2007) (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)) (emphasis added). Our inquiry does not, as the majority suggests, seek to ascertain a person‘s view of the effect that his own conduct has upon the police. Rather, our inquiry, an objective one, “is designed to assess the coercive effect of police conduct” on that person. Michigan v. Chesternut, 486 U.S. 567, 573 (1988).
As I explain above, the conduct of the police in this case would not have led a reasonable person to believe that “he was not at liberty to ignore the police presence and go about his business” until the MERGE team arrived on the scene. See Bostick, 501 U.S. at 437. In my view, no reasonable juror could conclude otherwise.
Between the arrival of the first responder, Officer Ryan, and the assembly of the MERGE team around 6:30 a.m., nothing significant about the officers’ activities would have led a reasonable person to believe that he was not free to leave if he desired to do so. Officer Ryan‘s actions were limited to coaxing Fisher out of his apartment and attempting to engage him in a meaningful conversation. When this proved unsuccessful, Ryan called a tactical negotiator, Officer Males, to assist. She responded and arrived around 3:15 a.m. Her attempts to speak with Fisher were also unsuccessful. Indeed, Fisher informed Males that she could enter his apartment, but he would shoot her if she did. Males, like Ryan, neither ordered Fisher to exit his apartment, nor displayed a weapon; her objective was to persuade Fisher to exit his apartment peacefully so that the officers could speak with him about the events earlier in the morning. Both Males and Ryan specifically testified that they never told Fisher he was under arrest or was required to leave his home. Although other officers were positioned around the apartment building, there is nothing in the evidence that shows that Fisher was aware of their presence, or that the other officers attempted to make their presence known to Fisher.
The arrival of the MERGE team on the scene, however, changed the atmosphere outside Fisher‘s apartment. Ryan called for the MERGE team at about the same time that he called for the tactical negotiator. Sometime between 6:00 and 7:00 a.m., approximately seventeen MERGE officers assembled at the scene along with an armored rescue vehicle and a mobile command center. The MERGE officers, dressed in tactical gear and armed, did not take long to make their presence known to Fisher. The MERGE team set up a loudspeaker system and fully secured the perimeter areas. The record clearly reflects that by at least 6:30 a.m., a reasonable person in Fisher‘s position would have understood that, with such show of force, he was not free to leave.
In determining whether Fisher‘s seizure was justified, we must consider whether exigent circumstances excused the need for a warrant. That inquiry, as noted above, requires consideration of both the facts of the exigency and whether there was sufficient time to secure a warrant. No evidence in the record suggests that, from the time Fisher threatened Officer Ryan until 6:30 a.m. when the MERGE team was in control, there was insufficient time to obtain a warrant before taking any official action to seize or arrest Fisher. Officer Ryan and Males did testify that they did not believe that a warrant was necessary, but that subjective testimony is irrelevant, because the Fourth Amend-
ment inquiry is an objective one. United States v. McConney, 728 F.2d at 1199. The evidence did establish, however, that a district attorney was available twenty-four hours a day/seven days a week to assist the police in obtaining a warrant, telephonically or in person. The record also shows that a magistrate was on call twenty-four hours a day/seven days a week. Significantly, there was no explanation why any attempt to obtain an arrest warrant between 2:00 and 6:30 a.m. would have frustrated the officers’ on-scene objectives.I fully understand the majority‘s concern for the ability of police officers to have the freedom to make swift tactical decisions that, in the context of a highly dangerous and volatile armed standoff, could implicate the safety of officers and others. I also recognize that when police face an armed standoff, there may be a compelling need to use force to enter a person‘s home immediately to alleviate a highly dangerous situation. However, the officers’ measured and deliberate responses to Fisher‘s verbal and physical threats—summoning and waiting for both the tactical negotiator and the MERGE team—demonstrate that there was ample time to have at least made a good faith attempt to obtain a warrant. A review of this evidence leads to the inescapable conclusion that between 2:00 a.m. and the initial seizure at 6:30 a.m., there was ample time for the officers to obtain an arrest warrant. The subsequent arrest of Fisher was unlawful because the initial warrantless seizure, unsupported by exigent circumstances, was unlawful. For this reason, I would affirm the district court‘s Rule 50(b) judgment as a matter of law.
For all of the above reasons, I respectfully dissent.
REINHARDT, Circuit Judge, with whom KOZINSKI, Chief Judge, and PREGERSON, THOMAS, and PAEZ, Circuit Judges, join, dissenting:
It is a fundamental principle of our Fourth Amendment jurisprudence that warrantless in-home arrests are permissible only when necessitated by exigent circumstances. Even if exigent circumstances existed at 6:30 a.m. when the police initially constructively seized Fisher by surrounding his home,1 the officers involved in the ensuing standoff violated the Fourth Amendment by failing to seek a warrant before escalating their initial interference with Fisher‘s Fourth Amendment rights. This escalation occurred when the police hurled a throw phone, a flash-bang device, and tear gas onto Fisher‘s property, forced him from his home, shot him with “less-than-lethal” rubber bullets, and ultimately made an
I.
Warrantless in-home searches and seizures are permissible only if the police demonstrate exigent circumstances. Such circumstances are not present “unless the government demonstrates that a warrant could not have been obtained in time . . . .,” United States v. Manfredi, 722 F.2d 519, 522 (9th Cir.1983); see also Bailey v. Newland, 263 F.3d 1022, 1033 (9th Cir.2001) (” [T]he presence of exigent circumstances necessarily implies that there is insufficient time to obtain a warrant; therefore, the government must show that a warrant could not have been obtained in time.‘“) (quoting United States v. Tarazon, 989 F.2d 1045, 1049 (9th Cir.1993)); United States v. Lindsey, 877 F.2d 777, 782 (9th Cir.1989). In other words, the absence of time to obtain a warrant is a necessary condition for a finding of exigent circumstances; if time to obtain a warrant is available, there are necessarily no exigent circumstances.
Here, there is no dispute that the police could have obtained a warrant during the period between their arrival at Fisher‘s apartment and the forcible arrest that ended the standoff. Although more than 60 officers participated in the standoff, no officer sought a warrant at any point during the 12 hours in which the incident transpired. Some of the officers who first responded to the incident left the scene at 7 a.m. and returned to the police station; these officers, for example, could easily have prepared a warrant application and sought a magistrate‘s approval, without adversely affecting the police activities at the standoff in any way.
As the district court noted, “Defendants have offered no explanation, and none exists, as to why [not] one of these officers was []able to seek and obtain a telephone warrant or make use of the procedures available twenty-four hours a day to obtain a warrant from a judge in person. . . .” The standoff here did not involve “rapidly unfold[ing]” events that prevented the police from seeking a warrant. Cf. United States v. Sarkissian, 841 F.2d 959, 964 (9th Cir.1988). Likewise, in light of the return to the station house of a number of officers from the scene at 7 a.m., the defendants cannot assert that their ability to procure a warrant was evident only in hindsight. Cf. Lindsey, 877 F.2d at 782 (finding that no warrant was required where officers had the time to procure a warrant only because of an unforeseeable delay in the arrival of reinforcements). Rather than “taking immediate action in the face of rapidly evolving circumstances,” Majority Opinion at 1084 (emphasis added), the defendants in this case chose a course of action that gave them more than sufficient time and opportunity to procure a warrant, and failed to obtain one only because they elected not to do so.2 Their failure to obtain a warrant in
Whether or not the initial constructive seizure was, as the majority claims, justified by exigent circumstances, those circumstances no longer existed after 7 a.m. when the officers returned to the station house with a full opportunity to procure a warrant. In the absence of such circumstances, the officers were required to seek a warrant before further accelerating their intrusion on Fisher‘s Fourth Amendment rights, and certainly before forcing him out of his home and making a forceful arrest.
In the context of in-home arrests, the warrant requirement protects two distinct Fourth Amendment rights. First, it protects a right to personal liberty by preventing unjustifiable detentions. Second, it protects the privacy and sanctity of the home. The home is “perhaps the most sacrosanct domain“—the domain in which “Fourth Amendment interests are at their strongest.” LaLonde v. County of Riverside, 204 F.3d 947, 954 (9th Cir.2000). Due to the home‘s sanctity, “[t]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). For the same reason, any warrantless entries that do occur “must be ‘strictly circumscribed by the exigencies which justify [their] initiation.‘” Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (quoting Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).
The fact that Fisher was constructively seized by the police at approximately 6:30 a.m. cannot justify the subsequent warrantless intrusions that occurred long after a warrant could have been obtained. Because each subsequent intrusion involves a violation of the sanctity and privacy of a suspect‘s home, each intrudes separately upon the suspect‘s Fourth Amendment rights. Because any warrantless entry of the home must be strictly circumscribed by the exigent circumstances justifying it, police crossings of that “firm line at the entrance to the house” established by the Fourth Amendment must be supported by either a warrant authorizing the physical entry or by exigent circumstances. Once a warrant is obtained—ordinarily not a very difficult task when time exists—the necessary support is provided, and no additional warrant is needed to justify any subsequent intrusions. However, when the exigency has ended, no additional intrusions are permissible without a warrant. Forcing a suspect out of his home and physically arresting him through the use of force involves an additional intrusion upon his personal liberty far more serious than the surrounding of his home or apartment, and must unquestionably be justified by a warrant or exigent circumstances. Because of the significant additional intrusions upon Fisher‘s Fourth Amendment rights resulting from the subsequent actions of the police, his constructive seizure at approximately 6:30 a.m. cannot immunize those subsequent actions from constitutional scrutiny if there was time and opportunity to obtain a warrant before they occurred. Cf. Terry v. Ohio, 392 U.S. 1, 17, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Any contrary rule entirely disregards the fundamental differences between a constructive seizure and an actual, forcible arrest or home invasion.3
As the actions of the police who surrounded the house escalated, they became increasingly more dangerous to Fisher and more invasive of his rights. The initial action involved a constructive seizure and presented little risk of damage to his apartment or physical injury to him. The subsequent actions of the police involved the actual physical invasion of his property with a throw phone, a flash-bang device, and tear gas, and the use of increasingly dangerous tactics, including the hurling of the flash-bang device onto the premises, see, e.g., United States v. Ankeny, 502 F.3d 829, 833 (9th Cir.2007) (noting first-and second-degree burns caused by explosion of flash-bang device), followed by tear gas canisters, and finally the firing at him of less-than-lethal bullets, culminating in his physical injury and forcible physical arrest. Given the drastically different consequences of the initial constructive seizure and the subsequent police actions—consequences directly related to the suspect‘s interests in privacy, personal security, and the sanctity of the home, all of which are protected by the Fourth Amendment—and the requirement that any warrantless intrusion upon Fourth Amendment rights be strictly circumscribed by the exigent circumstances justifying the intrusion, the alleged legality of the initial warrantless constructive seizure did not render the subsequent warrantless actions of the police constitutional. Those further intrusions on Fisher‘s Fourth Amendment rights would have been lawful only if the police had obtained a warrant or if, at the time those further intrusions occurred, exigent circumstances continued to exist; as explained supra, such exigent circumstances would have existed at the time of the further intrusions only if at that point the police had not had an opportunity to obtain a warrant.
II.
The majority contends that a warrant was not required for the Fourth Amendment intrusions that followed Fisher‘s constructive seizure in his home because the protections of the Fourth Amendment were stripped from him at the time his home was surrounded. Thus, the majority argues, the subsequent actions were “no more than an actual continuation of the initial seizure.” Majority Opinion at 1076 (citation omitted). There is no legal authority whatsoever that supports this contention. The majority relies entirely on two wholly inapplicable cases: the Supreme Court‘s decision in Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), and this court‘s decision in United States v. Echegoyen, 799 F.2d 1271, 1273 (9th Cir.1986). Neither Tyler nor Echegoyen supports the majority‘s holding, and the majority offers no other support for its theory of the stripping of
Tyler dealt with an entirely different question: the intrusion of firefighters onto private property in order to fight a fire and their right to remain on the premises for a reasonable period in order to (1) determine the fire‘s cause and (2) make certain that there is no danger that the fire will start up again. The Court held that firefighters do not need a warrant for such an intrusion—i.e., that actual fire-fighting is categorically exempt from the warrant requirement. It also held that, when at 4 a.m. “darkness, steam and smoke” temporarily prevented fire officials from pursuing that objective, their departure from the premises and return “shortly after daylight” to complete their mission did not constitute a termination of one intrusion and the commencement of another, one for which a warrant might be required. 436 U.S. at 510-11, 98 S.Ct. 1942. Instead, the Court held that when the search resumed the fire officials were still pursuing their initial action, one for which a warrant was not needed. Id.
The Court made plain in Tyler what would appear obvious. It stated, “It would defy reason” to assert that firefighters would need a warrant to enter a building to fight a fire, id. at 509, 98 S.Ct. 1942, or to remain there “for a reasonable time” to determine the fire‘s cause and make certain that it would not resume, id. at 510, 98 S.Ct. 1942. The fire itself, the Court explained, provides a sufficient excuse from the requirement that a warrant be obtained; it added that resuming the investigation in the morning was simply “an actual continuation” of the prior evening‘s categorically exempt activities.
Here, however, there is no question that a warrant is required for the type of action undertaken by the police, including the initial constructive seizure of Fisher in his home. In Fisher‘s case, the requirement that a warrant be obtained was excused only because there was insufficient time to obtain one before undertaking the initial police action. Tyler tells us nothing about whether, in such cases, when conditions change and there is time to seek a magistrate‘s authorization a warrant must be offered before the police engage in further and more substantial Fourth Amendment intrusions.
In short, Tyler is a case about a category of actions for which a warrant is not required, while Fisher is about a category of actions for which one is. That the firefighters’ actions in Tyler all constituted a part of a continuing categorically exempt investigation renders the case of no relevance here. To base approval of the warrantless actions of the police in Fisher‘s case on the Supreme Court‘s holding in Tyler is to misunderstand fundamentally the nature and purpose of the Fourth Amendment warrant provision.
Unlike the majority‘s interpretation, this reading of Tyler accords with the Supreme Court‘s subsequent treatment of the case. Tyler has been cited at least twice by the Court for its specific holding that fire investigators may remain on the premises where a continuing or recently extinguished fire has occurred, in order to determine the fire‘s cause. See, e.g., Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006); City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).4
Echegoyen, upon which the majority also relies, is inapplicable here for the same reason as Tyler. As the district court held, the subsequent entry in Echegoyen “was a[] limited entry done for the purpose of avoiding a possible explosion” at a time when the evidence showed the existence of an “explosive” and “potentially dangerous fire hazard.” 799 F.2d at 1274, 1278. “[T]he subsequent entry . . . was based on the need to use [the officers‘] expertise in inspecting the premises for a possible fire hazard.” Id. at 1280; see also id. at 1278 (“The second entry was done to inspect the premises to determine if any public safety hazard [related to a fire or explosive hazard] remained.“). Thus, the “subsequent” entry in Echegoyen was a Tyler entry designed to investigate and eliminate a potentially explosive fire hazard. Because Echegoyen, like Tyler, involved an entry responding to the public safety risks created by a fire hazard, that case, like Tyler, is entirely irrelevant here.5
Because Tyler involves an intrusion to suppress a fire and make certain that it would not resume—an intrusion for which no warrant is necessary—and Echegoyen involves a similar intrusion for the purpose of investigating a potential explosive fire hazard, neither case offers any support for the majority‘s decision. And without Tyler and Echegoyen, the majority is left with nothing, not a single case, that lends any support to its theory: that no warrant is required for any Fourth Amendment intrusion, regardless of its nature, that occurs at any time following the warrantless surrounding of a dwelling and constructive seizure of its occupant, even though the police have more than sufficient time to obtain a warrant before undertaking such actions.6 The majority may wish the law were different, but we must apply it as it is, and the law as of today limits warrantless intrusions into the home for the purposes of a search or seizure to
III.
Because a police action may be commenced before a warrant can be obtained, it does not follow that the police may continue that action indefinitely or may significantly escalate their invasion of a suspect‘s Fourth Amendment rights without obtaining a warrant, even though they have a full opportunity to obtain one first. Specifically, where a house is surrounded and its occupants constructively seized without a warrant because of lack of time to obtain one, it does not follow that a forceful invasion of the home or a forcible arrest of the person may be initiated without a warrant long after one could be obtained.7 To the contrary, whenever the justification for a serious intrusion on Fourth Amendment rights may be presented to a neutral magistrate for his consideration, law enforcement officers are required to do so. That is the fundamental teaching of the Fourth Amendment, and nothing in the circumstances of this case justifies a departure from that simple rule, particularly as the obtaining of a warrant here would in no way have interfered with or delayed the ongoing police action. As pointed out earlier, any of the numerous officers who withdrew from the scene and returned to the station-house could have prepared the necessary application and presented it to a magistrate.
As Justice Jackson explained more than 60 years ago, the basic protection of the Fourth Amendment “consists in requiring that [the] inferences [justifying a search or seizure] be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). A neutral evaluation protects Fourth Amendment rights by reducing the risk of unjustifiable searches and seizures and by requiring that police carefully define the reasons for and scope of any particular search or seizure. Because of the importance to Fourth Amendment interests of a magistrate‘s review of a warrant application, “the police bear a heavy burden when attempting to demonstrate an urgent need that might justify” a departure from the warrant requirement. Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Such departures are “few in number and carefully delineated.” Id. at 749-50, 104 S.Ct. 2091 (quoting United States v. United States District Court, 407 U.S. 297, 318, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)). It is only in those limited instances where necessity requires abatement of this principle that we do so—in other words, only in exigent circumstances.
Because exigency is an exception to a fundamental principle of the Fourth Amendment mandated by necessity, any warrantless search or seizure “must be
In suggesting that requiring a warrant in the circumstances of Fisher‘s case would serve no purpose, the majority fails to comprehend the significance of its abandonment of basic Fourth Amendment principles. According to the majority, “any warrant obtained by the police would have merely authorized them to do exactly what they were already doing, and indeed, exactly what they were already authorized to do: surround Fisher‘s home and attempt to neutralize the threat that he posed by arresting him. We do not see what a neutral and detached magistrate would have added in helping to peacefully effect Fisher‘s arrest.” Majority Opinion at 1078 (footnote omitted). This analysis is startling. As Justice Jackson explained, the purpose of the warrant requirement is not, as the majority appears to believe, to help police “effect [a suspect‘s] arrest,” id., but to ensure that the decision to arrest an individual is consistent with the Constitution. Nothing in the circumstances of Fisher‘s constructive seizure eliminates the value of a neutral, detached evaluation of the reasons for the subsequent invasions of his home, including his forcible extraction from it in order to physically arrest him. In such circumstances the magistrate does not “pre-authorize tactical decisions made by police,” Majority Opinion at 1081, as the majority suggests, but instead, as in any other case, the magistrate provides an independent evaluation of the justifications for the Fourth Amendment intrusions that have not yet occurred—in this case escalating intrusions of a different order than a simple constructive seizure.10 By suggesting that requiring a
Furthermore, requiring a warrant in these circumstances would not involve a “retroactive warrant practice.” Majority Opinion at 1078. The warrant would not, as the majority seems to believe, justify the prior constructive seizure of the suspect. Instead, it would authorize the additional intrusions upon the suspect‘s Fourth Amendment rights that may result from the subsequent actions of the police. Even if a constructive seizure effectively places the suspect under arrest, as the majority claims, but cf. California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (“An arrest requires either physical force . . . or, where that is absent, submission to the assertion of authority.“) (emphasis in original), the purpose of the arrest is not fulfilled until the suspect has actually submitted to the authority of the police. Thus, the police are actively engaged in executing the arrest for as long as the suspect does not submit. Where, as here, the constructive seizure continues for a substantial period of time and the efforts of the police to effect the suspect‘s submission involve additional serious intrusions upon his Fourth Amendment rights, those intrusions must be supported either by a warrant or by exigent circumstances.
The neutral judicial evaluation provided by a magistrate judge‘s review of a warrant application is especially important in cases involving nighttime in-home arrests, often after forcible entries, and lengthy standoffs, which are inherently dangerous and may lead to tragic consequences. Such occurrences can lead to the death of the suspect or the destruction of the suspect‘s home, see, e.g., Bing, 456 F.3d at 558, 562 (suspect killed during raid and home burned down by fire started by flash-bang device); or to the death of innocent third parties, see, e.g., Ewolski v. City of Brunswick, 287 F.3d 492, 499 (6th Cir.2002) (suspect killed his son during standoff). An infamous police standoff in Philadelphia resulted in the deaths of eleven people, including five children, and the destruction of an entire city block. Don Terry, Philadelphia Held Liable for Firebomb Fatal to 11, N.Y. TIMES, June 25, 1996, at A10. Even where no deaths result from a standoff, the consequences may nonetheless be tragic. See, e.g., O‘Brien v. City of Grand Rapids, 23 F.3d 990, 994 (6th Cir.1994) (suspect rendered quadriplegic during raid). Closer to home, this Circuit has seen its own share of tragic police standoffs, from the shootout at Ruby Ridge, see Harris v. Roderick, 126 F.3d 1189, 1193–94 (9th Cir.1997) (describing the deaths of the wife and son of the subject named in the arrest warrant the enforcement of which led to the Ruby Ridge incident), to the destructive fire that ended the 1974 standoff between the Los Angeles Police Department and members of the Symbionese Liberation Army. Requiring that, when there is time to do so, police procure a warrant in such circumstances helps ensure that high-stakes standoffs occur only when legally proper.
The primary question, however, is not the presence of probable cause; it is who should make the determination required by the Constitution. Asking a magistrate judge to determine whether an arrest is supported by probable cause is not simply a “reasonable role for a judicial officer,” id.; it is constitutionally required, absent exigent circumstances, and is especially important in the high stakes context of nighttime in-home arrests or potential armed standoffs. The Fourth Amendment requires that, before certain invasions of constitutional interests may transpire, a neutral magistrate must determine whether probable cause exists. Whether a warrant is issued by the magistrate or not, submitting the application to him for his review fulfills the dictates and purpose of the Constitution and helps safeguard the rights of all individuals. The Constitution requires a warrant unless exigent circumstances exist at the time of the Fourth Amendment intrusion in question. Exigency requires a lack of time, and any exigency here no longer existed when the police engaged in the substantial Fourth Amendment intrusions that occurred hours after the initial constructive seizure of Fisher. The majority provides no support for its departure from the Constitution‘s requirements.
IV.
Finally, the majority justifies its decision on the ground that requiring a warrant in these circumstances would interfere with the efficiency and efficacy of police operations. However, “the privacy of a person‘s home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law.” Mincey, 437 U.S. at 393, 98 S.Ct. 2408. The majority‘s concerns for police efficiency are commendable, but they are extra-constitutional and exceed the proper role of the judiciary—absent exigent circumstances, the Fourth Amendment requires a warrant regardless of the majority‘s view that the Fourth Amendment may be inefficient.
The majority‘s efficiency concerns are also chimerical. Requiring officers with the time and ability to procure a warrant to follow the dictates of the Constitution would not “divert one or more officers from the task of resolving the standoff,” Majority Opinion at 1079, nor would it lead police to “ponder with each passing moment whether the exigency . . . that existed at the start of the standoff had sufficiently dissipated such that they must immediately” obtain a warrant. Id. No diversion of officers is necessary and no pondering by officers is required. If the officers do not have the time or ability to procure a warrant, the exigency continues. The officers’ first priority is to perform the duties in which they are engaged. If all of the officers at a standoff are engaged in responding to the “rapidly unfold[ing]” events, there is no time for
Moreover, rather than inviting judicial review “months if not years later by a jury or a judge from the confines of a courtroom” or placing judges in “the role of incident commander,” requiring a warrant in such circumstances will decrease the possibility of judicial “second-guessing.” Majority Opinion at 1079, 1080. Obtaining a warrant will afford the police protection against a number of potential lawsuits. Similarly, should a magistrate decide that the issuance of a warrant is not justified, the police will likely avoid a serious constitutional error and subsequent unfavorable judicial review years later; in addition, they may even discover that they are wrong as to the merits of the case. At the very least, requiring the police to procure a warrant ensures that they will do a proper job in obtaining the evidence necessary to establish that they have the right person. Under the majority‘s rule, however, an initial constructive seizure of an individual that occurs before there is an opportunity to obtain a warrant will relieve the parties of the ordinary obligation to obtain the objective view of a magistrate judge before engaging in major armed actions, thereby jeopardizing the public safety and opening the police to liability against which they might otherwise be protected.
Finally, the majority‘s concern that requiring a warrant would create a “safe harbor” for suspects in active standoffs, Majority Opinion at 1080 n. 7, is entirely baseless and reflects its failure to comprehend the relationship between the exigent circumstances exception and the fundamental Fourth Amendment warrant requirement. Should “a clear opportunity to peacefully resolve a dangerous situation” arise “in the midst of a pending, but not yet approved, warrant request,” Majority Opinion at 1080, or should the suspect‘s actions demonstrate the need for an immediate police response while a warrant request is pending, the police officers are free to act without a warrant because they would not have had time to obtain one before acting. This would seem to be a fairly elementary proposition, but one that the majority fails to comprehend. In sum, once again, the crisis the majority fears is wholly nonexistent.
* * *
The majority‘s contention that requiring a warrant in the circumstances presented by this case would be pointless and inefficient suggests that today‘s opinion has less to do with the conduct of Fisher—whose drunken interaction with a security guard led to a twelve-hour, hostage-free standoff; a single misdemeanor conviction; and an award of nominal damages and additional police training—and more to do with the majority‘s lack of respect for the warrant requirement. This court is not free to abandon that requirement, and it is regrettable that the majority renders it a nullity in the category of cases before us. It does so without any precedent in law, and its sole legal rationale consists of an erroneous extension of a single Supreme Court case—a case designed to allow emergency efforts by firefighters to eliminate unsafe fire conditions—to circumstances in which it has absolutely no applicability. Even more regrettable is the majority‘s failure to respect the historic Fourth Amendment
UNITED STATES of America, Plaintiff-Appellee,
v.
Kelly HAMMONS, Defendant-Appellant.
No. 08-50329.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 12, 2008.
Filed March 11, 2009.