GLEN HARRIS, individually, and PPA as guardian for K.H., a minor child, v. JOHNMICHAEL O‘HARE; ANTHONY PIA; and CITY OF HARTFORD
Docket No. 12-4350-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Decided: October 30, 2014
August Term, 2013 (Argued: December 11, 2013)
Before: POOLER, PARKER, and WESLEY, Circuit Judges.
Appeal from a September 27, 2012 order and judgment, entered September 28, 2012, of the United States District Court for the District of Connecticut (Robert N. Chatigny, J.) denying Plaintiffs’ motions for judgment as a matter of law and new trial, brought pursuant to
Reversed and remanded.
THOMAS R. GERARDE, Howd & Ludorf, LLC, Hartford, CT (Alan R. Dembiczak, on the brief), for Defendants-Appellees JohnMichael O‘Hare and Anthony Pia.
NATHALIE FEOLA-GUERRIERI, Assistant Corporation Counsel, Hartford, CT, for Defendant-Appellee City of Hartford.
POOLER, Circuit Judge:
Glenn Harris and his daughter K.H. (together, “Plaintiffs“) filed suit in 2008 against the City of Hartford and Hartford Police Officers JohnMichael O‘Hare and Anthony Pia (together, “Defendants“), for damages stemming from the officers’ warrantless entry onto Harris‘s property on December 20, 2006. After entering the property, O‘Hare shot and killed Seven, the family‘s pet Saint Bernard, at close range and within earshot, if not in front of, Harris‘s then-twelve-year-old daughter, K. During the entirety of the litigation leading up to trial, Defendants argued that there was no Fourth Amendment intrusion because the entry into the yard was not a Fourth Amendment search, that it was reasonable in any event, and that they were entitled to qualified immunity. The district court denied the parties’ cross-motions for summary judgment in March 2010 and the parties submitted their Joint Trial Memoranda in January 2011. More than a year later, weeks before trial, Defendants filed an addition to their trial memorandum adding the affirmative defense of exigent circumstances as an exception to the Fourth Amendment‘s warrant requirement. Plaintiffs objected to this late-raised defense. The district court permitted it over objection, and the jury returned a verdict for Defendants.
For the reasons set out in this opinion, we hold that there was insufficient evidence to support a factual finding of exigent circumstances, and that this substantive error requires reversal of the judgment. We therefore reverse the judgment entered in favor of Defendants, and remand the matter for further proceedings consistent with this opinion.
BACKGROUND
During a six-day trial held in May 2012, the jury heard evidence concerning O‘Hare and Pia‘s warrantless entry onto Plaintiffs’ property following their receipt of a tip about guns being stashed in an abandoned Nissan Maxima. The officers entered the property at the same time that Harris‘s twelve-year-old daughter, K., had returned from school and was playing with her three-year-old Saint Bernard dog, Seven, in the backyard of the family‘s Hartford home. The following facts are taken from the testimony and other evidence presented at trial.
I. Relevant Factual Background
A. Plaintiffs’ Home on Enfield Street
From 2006 to 2007, Plaintiffs lived in a single-family home at 297 Enfield Street. Their home was surrounded entirely by a chain link fence. In December 2006, Harris lived there with his daughter K., Tashonna Ayers, who was Harris‘s girlfriend
The house had a front yard and backyard, which the family used for cookouts, playing with the dogs and hanging out together and with friends. During the summer, Plaintiffs would have pool parties and water fights with a blow-up pool they set up. There is a front gate which remains closed with a latch. The gate opens onto a walkway leading up to the front steps and front door. On the front of the house is a “Beware of Dog” sign.
Harris testified that during his ownership of the property, there were no utility meters that would require utility personnel to enter the property. Further, when water company personnel needed to enter the property to place a water meter in the north side yard, they obtained his permission before they entered onto his property.
K. testified that when she played with her dogs in the yard, they would run all around the fenced-in periphery of the house. When the dogs were playing with K. in the yard, she never needed to leash them. No one would ever come into the yard while K. was playing if they were not invited. At the relevant time in 2006, Harris had two cars, a dark SUV and a white pick-up truck that he drove to work each day.
B. The Officers’ Gun Tip
On December 20, 2006, Officers O‘Hare and Pia were on duty in the vicinity of Enfield Street. Both were part of the “Northeast Conditions Unit,” which had its officers under orders to “get as many guns off the street as [they] could.” Trial Tr. Vol. I at 140. Then-Officer Gabriel Laureano, who is not a party in this action, was also on duty that day, specifically a few streets over on Garden Street. While patrolling with O‘Hare, Laureano saw George Hemingway, a high-ranking member of the West Hell Gang,1 whom Laureano knew to have been recently released on parole. Laureano noticed Hemingway drop “something” that “looked like little plastic sleeves” very discretely, which appeared to Laureano to be heroin or another type of drug. Id. at 64. This substance was later confirmed to be heroin. Id. Laureano and O‘Hare placed Hemingway under arrest, handcuffed him, and put him in the back of the patrol car. Later that evening, Laureano filled out an application for an arrest warrant.
Hemingway, while alone in the car with Laureano and knowing “he was in a bind” because he had been arrested with drugs while out on parole, told Laureano that “he could get [them] some guns.” Id. at 68. Laureano understood Hemingway to be hoping for some sort of “consideration” from a prosecutor in light of this arrest, and permitted Hemingway to make a call on his cell phone, during which time Laureano recalled Hemingway “was sweating and . . . was kind of frantic about figuring out where” the guns could be located. Id. at 147. Specifically, Hemingway informed Laureano that there were two small caliber guns stashed under the driver‘s seat of an abandoned grey Nissan Maxima in the rear yard of 297 Enfield Street. Hemingway did not tell Laureano how he knew about the guns.
Laureano had never used Hemingway as an informant before. Neither had O‘Hare or Pia. Armed with Hemingway‘s tip, Laureano “informed Officers O‘Hare and Pia to go check out the information.” Id. at 76; see also Application for Arrest Warrant
C. The Encounter at 297 Enfield Street
Proceeding without a warrant, Pia and O‘Hare entered the front gate at 297 Enfield Street. The officers did not go up to the front door to knock and explain their presence, nor did they look to the front door, or notice the “Beware of Dog” sign. They did not look to see if a grey Nissan Maxima was parked in the driveway. They also did not drive on a parallel street to check if they could see anything in the backyard from the street. Once they entered the property, the officers did not see any abandoned vehicles. In fact, although it is undisputed that Harris‘s SUV was in the driveway at the time, O‘Hare testified that he did not recall seeing any vehicles on the property.
As Pia and O‘Hare began walking along the side of the house toward the rear yard, both of the officers had their service weapons out in a “tactical low ready approach,” which O‘Hare explained was a two-handed grip, Trial Tr. Vol. III at 620. Pia recalled seeing the dog towards the rear corner of the side yard, as he peeked into the back yard. Pia saw the dog take a few steps towards him. O‘Hare yelled to Pia to run, and Pia turned around and ran until he exited the yard. O‘Hare heard the dog growl, and believed that the dog was chasing him. Rather than run out the way he had entered, O‘Hare ran back across the front lawn, turning to face the dog as he continued to back up. O‘Hare then fired three shots at the dog at point-blank range. After shooting the dog, O‘Hare saw K.
K. had returned from school and had taken Seven outside, which was a regular after-school chore. K. testified that after Seven urinated against the back fence, he ran around towards the front of the house. K. went around the opposite way, “[t]o cut him off.” Id. at 425. By the time she got to the area where her father‘s SUV was parked, K. heard two gunshots. K. ran to the front yard and she saw a police officer, with his gun aimed at Seven, who was laying in the grass. K. screamed, and testified that the police officer shot Seven a third time in the head, in front of her.2 Her stepmother ran outside upon hearing gunshots, saw O‘Hare holding a gun next to Seven, Pia standing in the driveway, and K. on her knees over Seven, who was lying on his side on the lawn.
No Nissan Maxima was ever found on or anywhere near the premises, and no guns were ever recovered.
II. Proceedings Before the District Court
Harris commenced suit in 2008 against O‘Hare, Pia, and the City of Hartford for damages stemming from the entry onto his property on December 20, 2006, and the shooting and killing of Seven. Plaintiffs’ complaint alleged eight counts: two constitutional claims brought pursuant to
Throughout the litigation, Defendants contended that there was no Fourth Amendment intrusion because the entry into the yard was not a Fourth Amendment search, that it was reasonable in any event, and that they were entitled to qualified immunity. The district court denied the parties’ cross-motions for summary judgment in March 2010—including Defendants’ motion asserting entitlement to summary judgment on the basis of qualified immunity. In January 2011, the parties submitted their Joint Trial Memoranda. There, too, Defendants maintained that their entry into Harris‘s yard was not a Fourth Amendment search, as it was not curtilage.
Weeks after the pretrial conference, and just before trial, Defendants filed an addition to their trial memorandum, which added the affirmative defenses of exigent circumstances and community caretaking as exceptions to the warrant requirement, and requested supplemental jury instructions on these defenses. Plaintiffs objected to these late-raised defenses as extremely prejudicial. The district court permitted evidence to be introduced at trial in contemplation of allowing these defenses over Plaintiffs’ objection.
A. Inclusion of the Exigent Circumstances Defense
At the close of evidence, and after both parties had moved for judgment as a matter of law pursuant to
[W]e had a man by the name of George Hemingway. . . . We know he was released from prison, on parole, caught with heroin, with a serious motive to try and help himself. We know that he said, I can find you some illegal guns. Guns is our business since the Northeast Conditions Unit started. They recover illegal guns all the time. They ask for illegal guns all the time, and they make these quick recoveries once they get tips. . . . [T]hey get from Laureano there are two guns over in an abandoned vehicle with a particularized description of the home, it‘s 297 Enfield Street, the location in the home, in the rear yard, in a Nissan Maxima, under the front seat, and it‘s gray.
Id. at 944-45. Defense counsel concluded, “illegal guns that are unsecured are a present and immediate danger to the public and to the community.” Id. at 946. He further offered that the officers “were not looking for any evidence to try and arrest someone or to try and develop a case or whatever. . . . We were going onto that property to take two unsecured illegal guns out of the community and into destruction. No arrests, no nothing.” Id. at 947.
B. Jury Instructions
The jury was instructed that the Fourth Amendment‘s warrant requirement extends to the curtilage of a home—“an area immediately adjacent to the home in which the individual has a reasonable expectation of privacy because the area in question is like part of the home itself.” Trial. Tr. Vol. V (“Jury Instructions“) at 24. The jury was given a series of factors to consider in making its determination about
The jury was also instructed that even if the property in question was curtilage, they were to decide whether the warrantless entry was lawful under the exigent circumstances exception to the Fourth Amendment‘s warrant requirement. The district court charged the jury as follows:
[U]nder the exception to the warrant requirement for exigent circumstances, conducting a warrantless search for contraband or evidence of a crime is justified if the police reasonably believe that unless they immediately conduct a warrantless search, the items in questions will be removed or destroyed. A mere possibility that such items could be removed or destroyed is not sufficient; rather, for the exigent circumstances exception to apply, the officers must be justified in reasonably believing that the items are in the process of being removed or destroyed or that removal or destruction of the items is imminent. Exigent circumstances justifying an immediate search may not be present if police have a reasonable opportunity to secure a residence to prevent destruction or removal of contraband or evidence while a search warrant is obtained.
Plaintiffs did not object to these instructions on the basis that they were legally incorrect. Rather, Plaintiffs asserted that the instruction should not have been given because there was no evidence to support the application of this exception. The district court overruled the Plaintiffs’ objection in an off-the-record ruling. Over Defendants’ objection, the jury was not charged on the community caretaking exception.
C. Jury Verdict and Interrogatories
Following the six-day trial, the jury returned a verdict for Defendants on all counts. The district court then issued two special-verdict interrogatories to the jury, specifically on the issue of curtilage and exigent circumstances. The jury did not reach a conclusion on the issue of whether the “area of the property that the defendants entered was curtilage,” but found that the exigent circumstances exception applied.
D. Post-Trial Motions
All parties filed post-trial motions. Harris and K. moved under
In a brief ruling, the district court denied Plaintiffs’ post-trial motions, holding that the jury could reasonably conclude that the officers’ entry was supported by probable cause and exigent circumstances. Dist. Ct. Dkt. ECF No. 129 (“Dist. Ct. Op.“) at 4. With regard to exigent circumstances specifically, the court held that
the jury could credit the officers’ testimony that they had an urgent need to take action to seize the guns before a warrant could be obtained. The officers explained that in their experience, illegal guns moved quickly, and they did not expect the guns to be in the Maxima for long. The jury also could credit the officers’ testimony that there was no reasonable alternative to entering the property to seize the guns, such as cordoning off the property while a warrant was obtained.
Id. at 4-5. The court also denied Harris‘s motion for a new trial, holding that the
DISCUSSION
On appeal, Harris and K. challenge the jury verdict and the district court‘s denial of their
I. Standards of Review
We review a district court‘s denial of a
A denial of a
Evidentiary rulings, such as permitting the testimony about Hartford‘s record as a violent city, are reviewed for abuse of discretion. United States v. Cadet, 664 F.3d 27, 32 (2d Cir. 2011).
II. Analysis
A. Fourth Amendment Warrantless Searches
“The core premise underlying the Fourth Amendment is that warrantless searches of a home are presumptively unreasonable.” United States v. Simmons, 661 F.3d 151, 156-57 (2d Cir. 2011) (citing Kentucky v. King, 563 U.S. 452, 131 S.Ct. 1849, 1856 (2011) (“It is a basic principle of Fourth Amendment law . . . that searches and seizures inside a home without a warrant are presumptively unreasonable.” (internal quotation marks and citation omitted))). As relevant to this case, “police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.” Kirk v. Louisiana, 536 U.S. 635, 638 (2002).
1. Curtilage
We first address the question of curtilage, a concept which “originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself.” United States v. Dunn, 480 U.S. 294, 300 (1987). Plaintiffs maintain that the question of whether the property constituted curtilage should not have been submitted to the jury, and that instead the district court should have instructed the jury that curtilage was established as a matter of law.
We need not address this argument because Plaintiffs suffered no harm from the error they contest. As indicated in the special interrogatories, the jury did not decide whether the area in question constituted curtilage, but focused directly on whether the officers’ intrusion into that area was excused by exigent circumstances. Because the district court instructed the jury only to consider the exigent circumstances defense if it found the area in question was curtilage, this case was decided on the jury‘s apparent presumption that Defendants could escape liability only if they succeeded in establishing their affirmative defense, which assumes sub silencio that the side yard of 297 Enfield Street was curtilage and therefore subject to the warrant requirement. Moreover, when the district court affirmed the jury verdict on the basis that sufficient evidence existed to support the finding of exigent circumstances and probable cause, it reinforced the jury‘s implicit conclusion that the officers had encroached on the curtilage of Plaintiffs’ home.
2. Probable Cause
We address whether the officers had probable cause to proceed with investigating Hemingway‘s tip, which is the first requirement for a warrantless search on the basis of exigent circumstances. Kirk, 536 U.S. at 638. Plaintiffs contend that as a matter of law, there was insufficient evidence to support a finding of probable cause here. We disagree, and affirm the district court with respect to its denial of Plaintiffs’
“[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules. Informants’ tips doubtless come in many shapes and sizes from many different types of persons.” Illinois v. Gates, 462 U.S. 213, 232 (1983). “Informants’ tips, like all other clues and evidence coming to a policeman on the scene may vary greatly in their value and reliability.” Id. (internal quotations omitted).
In rejecting Harris‘s post-trial motion for judgment as a matter of law, the district court concluded that under the “practical, nontechnical conception” of probable cause described by the Supreme Court, “the jury could credit the experienced officers’ testimony that Hemingway‘s tip provided probable cause that two guns would be found at this location.” Dist. Ct. Op. at 4. The district court also highlighted that Hemingway‘s tip was “reasonably detailed.” Id. at 2.
We agree with the district court‘s ruling on the issue of probable cause. The jury had evidence that on the day in question, the police officers identified Hemingway as a “high level member of the West Hell Gang,” which Officer Laureano described as a “[v]iolent street gang” comprised of teenagers and some twenty-year-olds
prior gun conviction. Laureano testified that, once caught, Hemingway “started volunteering information . . . that he knew where guns were, he could get us guns.” Trial Tr. Vol. I at 144. Hemingway described in detail where the guns would be found—under the front seat of an abandoned Nissan Maxima in the rear yard of 297 Enfield Street.
When asked why Laureano found Hemingway reliable, Laureano explained:
He is reliable in the sense where he is a known gang member who based on our intelligence was a high ranking, if not the leader. His friends had been arrested with guns, he had a prior gun conviction, we were responding over there on a daily basis for gunshots, people shot. And so when it came to guns, in my eyes, he was very reliable.
Id. at 76-77. Pia testified that Hemingway was “an active gang member. He was a member of West Hell, a leader. He had the power, he had the authority and the access to firearms. So in his area, in that context, he was reliable to us.” Trial Tr. Vol. II at 366. O‘Hare explained further, “Hemingway was now in a position of self preservation. It would be detrimental to him to provide us false information. . . . At that point he was looking for consideration. . . . And this was common practice we employed at the time to recover most of our illegal firearms.” Trial Tr. Vol. III at 679.
At this stage of the proceedings, this Court is not permitted to substitute its own view of what weight, if any, to give to Hemingway‘s tip. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000) (on review of a
3. Exigent Circumstances
Though we hold that there was sufficient evidence to support the jury‘s finding on probable cause, we do not reach the same conclusion with respect to exigent circumstances.
“The essential question in determining whether exigent circumstances justified a warrantless entry is whether law enforcement agents were confronted by an urgent need to render aid or take action.” Loria v. Gorman, 306 F.3d 1271, 1284-85 (2d Cir. 2002) (alteration and internal quotation marks omitted). “In answering that question, we must be cognizant of the Supreme Court‘s admonition that ‘exceptions to the warrant requirement are few in number and carefully delineated and that the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.‘” Id. (quoting Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984) (quotation marks and citation omitted)).
There was simply insufficient evidence to warrant the application of the exigent circumstances exception here. In Ruggiero v. Krzeminski, we explained, in a similar
a. Legal Standards for Exigent Circumstances
Recognizing that “the warrant requirement is subject to certain reasonable exceptions,” King, 131 S. Ct. at 1856, we employ an objective test in deciding whether a claimed exigency justifies a warrantless intrusion on
We have often referred to six factors, adopted from the D.C. Circuit opinion in United States v. Dorman, 435 F.2d 385, 391 (D.C. Cir. 1970), as guideposts for determining whether exigent circumstances are present:
(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause . . . to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry.
United States v. Moreno, 701 F.3d 64, 73 (2d Cir. 2012) cert. denied, 133 S. Ct. 2797 (2013) (citing MacDonald, 916 F.2d at 769-70 (omission in original and internal quotation marks omitted)).
Defendants concede that these factors “although informative, are not directly applicable to recovery of property scenarios because there is no specific suspect of interest to the law enforcement defendants.” As relevant here, “federal courts, including our own, have considered an additional factor, namely whether quick action
b. The Evidence Adduced at Trial Permits No Reasonable Inference of Urgency
O‘Hare stated that, on the day in question, the officers’ purpose was to retrieve the two firearms from the Nissan Maxima before anyone else could get to them, and that the officers made a “tactical approach” onto Harris‘s property “due to the fact we are in a high crime neighborhood.” Trial Tr. Vol. III at 682. O‘Hare also noted that “[he] was not sure if this would be an ambush.” Id.
Though genuinely held, the officers’ concerns about getting illegal guns off of the streets of Hartford are not pertinent to an exigency analysis. This is because testimony about how fast “guns move” in Hartford, or about the violent gangs in that part of the city, are not specific facts or evidence particular to this case. Rather, they are generalized facts about the city and about the nature of gun trafficking. Such general knowledge, without more, cannot support a finding of exigency. The exigency inquiry “turns on the district court‘s examination of the totality of circumstances confronting law enforcement agents in the particular case.” MacDonald, 916 F.2d at 769 (emphasis added).
In determining whether there was an “urgent need” to take action, the “gravity of the underlying offense” is considered “an important part of [the] constitutional analysis.” Welsh, 466 U.S. at 751-52. Here, there was no “underlying offense,” only a tip about guns left in an abandoned Maxima. Defendants’ counsel conceded that there was no evidence, and no allegation, that Harris was the holder, owner, or trafficker of the illegal guns mentioned by Hemingway.5 Thus, Pia and O‘Hare, who admit that they had no “suspect” in mind, must have had evidence of something more than the existence of guns in order for a jury to reasonably find that exigent circumstances warranted their immediate, tactical entry onto Plaintiffs’ property following the receipt of Hemingway‘s tip.
“The core question is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer, to believe that there was an urgent need to render aid or take action.” Simmons, 661 F.3d at 157 (emphasis added) (alteration and internal quotation marks omitted). Viewing the evidence in the light most favorable to Defendants, and crediting O‘Hare and Pia‘s testimony that they went over to 297 Enfield Street in order to seize two illegal guns stashed in an abandoned car, the record lacks any evidence of an “urgent need to . . . take action.” See id. First, it is undisputed that the property was entirely surrounded by a chain link fence, making much of the
“[A]bsent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within.” Groh v. Ramirez, 540 U.S. 551, 559 (2004) (internal quotation marks omitted). Thus, mere suspicion or probable cause for belief of the presence of a firearm does not, on its own, create urgency. See Simmons, 661 F.3d at 157-58 (“Of course, absent such an urgency, the gun alone did not justify the officers’ search of the bedroom.“) (emphasis added); United States v. Johnson, 22 F.3d 674, 680 (6th Cir. 1994) (“The mere presence of firearms does not create exigent circumstances.“).
In the rare cases where we have found exigent circumstances to be present on account of a firearm, the firearm is only one of multiple factors that are found to contribute to the urgency. For example, in MacDonald, New York City‘s drug enforcement task force had observed “numerous indications that a retail narcotics exchange was being operated” out of an apartment, and an undercover officer had entered into the apartment for an undercover drug purchase. 916 F.2d at 768. While in the apartment, the undercover officer saw two loaded weapons. Id. There, our Court concluded that a warrantless entry that occurred subsequent to the officer‘s confirmation of the presence of drugs and weapons in the apartment, was reasonable under the
Similarly, in United States v. Brown, we affirmed the district court‘s denial of a suppression motion on the basis of exigent circumstances where officers who violated the knock and announce rule were investigating the underlying offense of trafficking in crack cocaine and heroin and “the use of a firearm incident to that trafficking,” and “the suspects were reasonably believed to be armed” in light of a past attempt to collect a drug-related debt from a confidential informant with a “pump-action shotgun.” 52 F.3d 415, 421 (2d Cir. 1995).
In United States v. Crespo, 834 F.2d 267, 270-71 (2d Cir. 1987), we also found exigent circumstances based on several of the Dorman factors, and noted that “Crespo‘s prior use of guns made it reasonable to believe he was either armed when he answered Polkowski‘s knock, or that he would arm himself immediately upon retreating into his apartment.” See also United States v. Gordils, 982 F.2d 64, 69 (2d Cir. 1992) (affirming denial of motion to suppress, in light of several Dorman factors favoring exigent circumstances, where
Thus, Hemingway‘s tip did not create exigencies on its own. Defendants also argue that exigent circumstances could be created solely based on the officers’ past experience with Hartford. We disagree. Taken to its logical end, this argument would permit exigent circumstances anytime there is a tip about illegal guns being located somewhere in a high-crime neighborhood or city, and would allow the exception to swallow the rule.7 “[T]he general label ‘high crime area’ is not a substitute for analysis of the underlying testimony,” United States v. Freeman, 735 F.3d 92, 101 (2d Cir. 2013), and a warrantless search “must be strictly circumscribed by the exigencies which justify its initiation,” United States v. Klump, 536 F.3d 113, 118 (2d Cir. 2008) (quoting Mincey v. Arizona, 437 U.S. 385, 393 (1978)). Notwithstanding the officers’ description of Hartford as a “high- crime area,” the record does not reflect relevant evidence of criminal risk proximal to Harris‘s property. We disagree with Defendants’ proffered vision of police work—one which overvalues “high crime rates” as a factor to be considered in finding exigent circumstances.8
Accordingly, we conclude that there was insufficient evidence of urgency, and that the exigent circumstances exception to the warrant requirement was therefore not applicable on the evidence presented at trial. Because police officers require “either a warrant or probable cause plus exigent circumstances in order to make a lawful entry,” Kirk, 536 U.S. at 638, the invasion of Plaintiffs’ curtilage without a warrant violated the
4. Remedy
Two conclusions follow from our
Second, the court erred in denying Plaintiffs’
Plaintiffs ask that the judgment be reversed and also assert that the verdict and the erroneously given jury instructions invalidated the jury‘s verdict on the remaining substantive due process and state law
B. Qualified Immunity
Defendants ask us to find that they are entitled to qualified immunity. Below, the district court denied Defendants’ motion for summary judgment on the basis of qualified immunity and Defendants did not file interlocutory appeals challenging this denial. After trial, the district court again denied Defendants’
“Under the doctrine of qualified immunity, a government official performing discretionary functions is shielded from liability for civil damages if his conduct did not violate clearly established rights or if it would have been objectively reasonable for the official to believe his conduct did not violate plaintiff‘s rights.” Reuland v. Hynes, 460 F.3d 409, 419 (2d Cir. 2006) (internal citations omitted). “Because qualified immunity is an immunity from suit—not merely an immunity from judgment—assertions of qualified immunity should be addressed as early as possible in the judicial process.” Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003); see also Pearson v. Callahan, 555 U.S. 223, 232 (2009).
We think it appropriate here to consider the issue of qualified immunity in the first instance, because the underlying facts material to this determination are not in dispute and “the ultimate legal determination whether a reasonable police officer should have known he acted unlawfully is a question of law better left for the court to decide.” Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995) (alterations omitted) (citing Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.), cert. denied, 498 U.S. 967 (1990)).
In determining whether the officers are entitled to qualified immunity, the key question is “whether the right in question was ‘clearly established’ at the time of the violation.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). In 2008, when the shooting took place, it was clearly established that “police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.” Kirk, 536 U.S. at 638. It was similarly “settled doctrine that probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant.” Jones v. United States, 357 U.S. 493, 497 (1958). As discussed above, our prior doctrine makes it abundantly clear that the mere presence of a firearm does not, on its own, create the urgency necessary for exigent circumstances. See Simmons, 661 F.3d at 157-58; Groh, 540 U.S. at 559. A reasonable officer therefore should have known that it was unlawful to invade Plaintiffs’ curtilage under the circumstances.10
[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.
Dunn, 480 U.S. at 301. The first three of the Dunn factors indisputably favor the conclusion that the side and backyard were curtilage. First, the area is in close “proximity . . . to the home.” Dunn, 480 U.S. at 300. Second, the area is “included within an enclosure surrounding the home.” Id. Third, the officers had no reason to think that this area was put to any uses other than those associated with a home.
Furthermore, this Court‘s prior reasoning in Reilly “clearly foreshadow[s] a particular ruling on the issue” of curtilage in the present case. Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010). Nearly twenty years ago, we concluded that the curtilage of a criminal defendant‘s home extended to a cottage located 375 feet from the main residence, because the entire property was enclosed by a single wire fence, some hedgerows, and woods, with no interior fencing separating the cottage from the main residence. United States v. Reilly, 76 F.3d 1271, 1277-79 (2d Cir. 1996); see also Dunn, 480 U.S. at 301 n.4 (“[F]encing configurations are important factors in determining curtilage.“). And as in this case, the “actual use” of the land in Reilly included such “private activities” as cooking, swimming, Reilly, 76 F.3d at 1278, and other “intimate activity associated with the sanctity of a . . . home and the privacies of life,” Dunn, 480 U.S. at 300.
As the Supreme Court has explained, “for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage—as the area around the home to which the activity of home life extends—is a familiar one easily understood from our daily experience.” Oliver, 466 U.S. at 182 n.12; see also Florida v. Jardines, 133 S. Ct. 1409, 1414-15 (2013) (identifying a front porch as an “easy case” under the “ancient and durable” common law principles of
CONCLUSION
Because the police officers lacked a warrant or probable cause plus exigent circumstances to invade Plaintiffs’ curtilage, and because Defendants cannot offer any other basis on which the officers’ intrusion would be lawful, we conclude that Defendants violated Plaintiffs’
For the foregoing reasons, we REVERSE the judgment of the district court and REMAND for proceedings consistent with this opinion.