*3 scene, meet them at the she was not BETTY B. Before FLETCHER and was, her there but attacker and he de- BERZON, Judges, MARSHA S. Circuit living apartment nied in the though TRACER,* Judge. G. District DAVID key a it. These circumstances Opinion by Judge BETTY B. enough reason for the were officers to FLETCHER; by Judge Dissent very believe that Walker could well be in BERZON. addition, injured. that he attacker admitted was aware ORDER AMENDING OPINION AND the officers were AND AMENDED DISSENT OPIN- domestic violence call. How did he AND AMENDED ION DISSENT that? It know could be that Walker told FLETCHER, Judge. B. Circuit calling po- that she earlier lice. But more serious alternative was ORDER possibility: had returned also opinion The and dissent filed on October police and told Black that the were on Black, United States way to which he had a violent re- (9th Cir.2006), are amended as fol- sponse. The officers did have the lows: thorough time to conduct examination AMENDMENTS TO OPINION of all the information that was available conclude, to them and to as we page following line 32 add the On fact, unlikely para- after the that this was an beginning sentence of the “First, graph: stop- possibility. did not have * York, by designation. Trager, sitting The David Unit- trict New Honorable G. Senior Judge ed States District Dis- Eastern concedes, that he arrived at 804 J ly rightly 8:42:5825 dissent
As just over again the actions Street 8:43:2487— judged by is to be objectively reasonable ended her minutes after Walker three They them. known to 911 call. trial, but conducting a were ignore these majority prefers on-the-spot decision required to make conjecture specifically, facts in favor of — could be to whether Walker as that Black knew its inference help; the in need of medical violence investigating a domestic require did not objective circumstances told him Walker herself incident because the conclusion that there them to reach call, hypothetically about the 911 or no risk was little *4 hy- This returning apartment. con- danger. in To the however, accord with does not pothesis, these circum- trary, the combination of nigh that makes it tight timeline support an reason- stances have re- impossible unto Walker in that could be able belief Walker calling after turned to the apartment. Rodriguez’s arrival. but Officer before TO DISSENT AMENDMENTS Moreover, by hanging hat on this its events, majority ignores version paragraph page In the third full on alternate, plausible, but far more its own “The officer ar- replace the sentence first Black knew the namely, that Street, about three minutes rived at 804 J scenario— a domestic vio- investigating 911” with “The first after called officer, arrived at J Street Rodriguez, Walker told lence incident because a.m., three minutes after Walker at 8:43 fleeing call 911 that she would before call.” ended her 911 inference does not This beginning paragraph 1.In the last full returning apart- hinge on Walker two page replace on the first and, thus, calling unlike ment majority argues sentences —“The conjecture, would fit into majority’s morning’s that this timeline of the presented; surprisingly, the timeline by relying— somehow errs events majority Equally plau- dismisses it. seemingly, too much—on the evi- chronological under the established sible supported by the rec- dence before yet possibility— is another constraints yet, ord. And these that Black surmised that the upon before and the facts which us investigate a domestic vio- rely to make our deci- we must anything lence incident not because of para- next three sion.”—with the did, because simply said or but graphs: just in had been involved such he in this case is The timeline of events short, morning. that incident earlier record, courtesy amply supported by the anal- only majority base its does that exceedingly precise log anof —one ysis pure conjecture, but the theories the relevant events down to chronicles not conform to the de- spins it out do Vegas po- millisecond—from the Las the record establishes. tailed timeline communication center. department’s lice 1149, begin para- a new page 2. On log, According know sure, graph with the text: “To be exactly 8:39:3465 Walker called 911 ” none of the information.... spoke dispatcher and that she with begin- page 3. On the sentence also know exactly until 8:40:1749. We sure, none of the infor- ning at exact- “To be Rodriguez none, ...replace finding the word apart- mation continued to the record,” with “in the so that “here” ment. “To the sentence now reads: be After Kikkert arrived at Black’s sure, none of the information the ment, the two officers knocked on the affirmatively record confirms They front door received no response. but where Walker was after she made apartment manager then contacted the her 911 call.” an attempt gain building. access to the page edit the On sentence meantime, In the Kikkert circled the build- “Instead, begins government’s There, inspect backyard area. ” .... it arguments so reads: he discovered an individual who matched “Instead, government’s argu- physical description. Black’s The individu- ments, majority’s, like the amount to al identified Jasper himself as Black and nothing ‘spec- more than insufficient admitted he knew the ” ulation.’ domestic violence call. He knowing denied the whereabouts of Walk-
AMENDED OPINION er and also denied that he lived appeal, Jasper challenges Black On *5 apartment. When the defendant became a in possession, arguing conviction as felon agitated, police patted one of the officers that the district court erred when it denied him weapons down for and searched his af- suppress gun. his motion to the We consent, pockets with the defendant’s firm. yielded key which the to the apartment. I. Using key, Rodriguez the entered and quick sweep apartment made a justify entry police The their into anyone see if No was there. one was apartment, looking Black’s not as one for present, but Rodriguez gun noticed a on a crime a evidence of but as welfare search touching gun, the bed. Without the he occasioned a 911 domestic violence call. exited, Black, sought arrested and a war- dispatched apartment Police were Tyroshia rant for the ex-girlfriend, gun. Black’s Walk- er, reported called 911 and that Black had justified in police their up morning beaten her that the entry they because feared that Walker ment that he Toward gun. the apartment, could have been inside the bad call, end of her 911 Walker told the dis- attention, injured ly and in need of medical patcher that she intended to return to the and that their warrantless search of the apartment with mother in her order to was, therefore, justified by apartment exi clothing retrieve her two gent As the circumstances. apartment, women would wait outside the argued during suppression both hear truck, pickup police in a white Ford for appeal, and on Walker could have re Rodriguez arrive. Officer call, apartment turned to the after her 911 to the scene to meet the women. heWhen police but before at the At arrived scene. apartment arrived at the a few minutes point, managed Black could have Walker, signs later there were no her pull apartment. her back into the Once mother, Rodriguez or the truck. contact- repeat Black—in apartment, inside the Kikkert, already ed Officer who was performance of his behavior earlier way apartment, and directed again have morning beaten Walker stop by grocery store from which —could apartment severely in the and left her phone Walker had made her call. Kikkert but, worse, injured. have shot signs checked the store for of Walker Even could concedes, rightly As the knew was dissent police using gun objec the actions of apartment. inside by the judged to be tively reasonable is that the circum- The dissent would hold They to them. known support an case do not of this stances trial, required but were conducting not belief objectively reasonable decision as to on-the-spot make an empha- It apartment. could be inside apartment be in the could whether Walker Walk- span time between sizes the short objective cir help; of medical in need Rodriguez’s arrival on call and phone er’s to reach require them cumstances did was a two- Because Walker the scene. little or no that there was the conclusion building from minute drive in the risk that Walker was police, and Officer called when she contrary, the combination danger. To three Rodriguez approximately objec support of these circumstances call, argues the dissent minutes after that Walker could tively reasonable belief time after there was not sufficient apartment. be in the to force defendant Walker’s arrival would be This is a case where pars- The dissent apartment. her into the they investigated harshly criticized had finely. es the time too fact and Walker First, stop- not have did caution is Erring on the side of only approxi- in hand and could watches police offi- expect of conscientious what we Second, if Black elapsed mate the times. a “welfare search” where cers. This is the build- outside had seen Walker arrive objective, rather than is the rescue him to take time for ing, it would little not second- for crime. should We *6 force her gun a threaten Walker with objectively reasonable guess the officers Third, knew at what the officers inside. in such a decision case. said she would the time was that Walker scene, recognized has not there Our circuit at the she was meet them cases was, exigencies of abuse living he denied “the domestic attacker but her that, appropriate in an present dangers key he had a to it. though in the apartment case, priva may override enough were reason considerations These circumstances Brooks, 367 F.3d cy.” States v. Walker United for the officers believe (2004). stopped we have in- very be the While could well abuse addition, holding that “domestic admitted short of jured. In the attacker per a se need for officers were cases create was aware entry,” we continue to evalu call. violence warrantless basis, ate, case-by-case whether the be that he know It could How did that? circumstances, the law presented to that she was call- “total told earlier ... relieved the alter- officer before But more serious police. prior customary need for a officer of possibility: also a native was individualized as warrant.” Id. Our Black that own returned and told presented a violent sessment of way to which he had were on the leads us the same conclusion not have the this case response. The officers did the offi the district reached: thorough examination of court time to conduct a entry into the initial warrantless available to cer’s all the information that was justified by exigent circum conclude, as we them and to result, and, subsequent fact, as a unlikely possibili- was an stance that this time, handgun ac- of Black’s seizure ty. —this complished with warrant hand —was not Borneo, Inc., zens Council v. unconstitutional under the Fourth Amend- Cir.1992) (taking judicial notice of ment.1 a California judgment). court’s final
We affirm the district court’s decision to Because object Black did not deny Black’s and, motion to suppress government’s turn, provide failure to uphold his conviction. statute’s citation court, before the district II. we review plain this matter for error. See Pimentel-Flores, 339 F.3d at so appeal, On Black also argues that doing, we conclude that although gov government at the failed sentencing ernment’s error was both “actual” and hearing to prove that he had a prior quali “plain,” it did not affect Black’s “substan fying controlled substances offense under rights.” tial Id. First, Black’s 2K2.1(a)(2), § con prior U.S.S.G. it because never viction clearly is supplied related to a sentencing judge with the controlled ac Second, tual substances offense. statute conviction. if we United declined Pimentel-Flores, States v. judicial take notice of Judgment (9th Cir.2003) (“[T]he Conviction, actual statute of merely be delaying prior conviction must be supplied to the the inevitable; our next step would simply by government district court be to remand Black’s case for resentenc- or anyone objects absence.”). to its ing. Id. at 969 (remanding to the district acknowledges the mis court for resentencing so that govern take, but asks us to by correct it taking ment satisfy can its burden of “sub judicial notice of a controlled-substances- mit[ting] judicially-noticeable documents related Judgment of Conviction demonstrating prior statute of convic issued a Nevada state against court tion”). than Rather take this unnecessary Black. Appellate “generally courts will step in light of the fact that our —and not consider facts outside the record devel decision avoid so doing does not affect oped before the court,” district but “may Black’s substantial rights we, instead, — take notice of proceedings in courts, other *7 judicial take notice of the Judgment of within both and without judicial the federal Conviction and affirm Black’s 110-month system, if those proceedings have a direct sentence. relation to matters at issue.” See United States ex rel. Robinson Rancheria Citi- AFFIRMED. Analyzing police
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AMENDED the circum- totality depends on dissenting: BERZON, Judge, Circuit whether, stances.”). in It must consider offi- I believe I Because dissent. circumstances, an officer’s of these light cer’s warrantless was without a warrant to enter decision the Fourth justified under cannot be Brooks, 367 “objectively reasonable.” ex- circumstances” “exigent Amendment’s at 1136. F.3d I requirement, warrant to the ception out, our court majority points As the court’s decision district would reverse the recognized have indeed circuits suppress and other deny Black’s motion present a violence cases overturn conviction.1 times, may, dangers set of unique “heavy bur by emphasizing begin I Id. privacy.” considerations “override try when government bears den” that time, is no domestic there At the same circumstances. See prove exigent ing to Amendment exception abuse Fourth Howard, F.2d 828 States v. United the exi on Cir.1987) generally, or to limitations (9th v. (citing United States 555 (9th Cir.1985)). particular. exception gent circumstances Licata, 761 F.2d 543 Instead, “those circum cases in those domestic violence Exigent circumstances finding cause reasonable of exi upheld stances that have where courts entry ... nec person circumstances, to believe pre gent of harm the essary prevent physical that the victim clear evidence sented with persons, or other destruction ficers vicinity of the abuser still both evidence, escape of the sus relevant v. danger. See States and still in United consequence improp pect, or some other (9th Martinez, Cir. law enforce erly legitimate frustrating (“When 2005) violence victim the domestic Brooks, v. United States ment efforts.” home, may is still Cir.2004) (omis (9th F.3d entry pursuant exigency justify an v. (citing original) United States sion Brooks, doctrine.”). United States 1195, 1199 Cir. McConney, 728 F.2d circum example, we held 1984) (en banc)). cir prove To such warrantless an officer’s supported stances existed, can cumstances the officer entry into a hotel room when may rely “speculation about what a guest to the room after was dispatched Howard, happened.” have or woman of a report called 911 to “sounds Instead, point it must next door. being beaten” from room which, taken “specific articulable ar the officer F.3d at 1130. When ..., sup inferences together with rational rived, the door defendant answered (in Id. intrusion.” port the warrantless *8 had been that a woman and confirmed omitted) (omission in quotations ternal loud,” room, “very that she had been turn, court, must view original). A bathroom. she was now in the and that totality of circum exigencies “from the with this set of circumstances— Id. Faced at time to the officers stances known fact that the officer considering the and Id. See intrusion.” of the warrantless or hear the but could could see woman Arellano-Ochoa, v. also United States was in “total Cir.2006) that the hotel room observe 1142, 1144-45 F.3d that the officer’s (“Whether disarray” court held exist exigent circumstances —this majority’s agree with the conclusion. II decided in Part 1. Were I to the issue reach sentencing, regarding I disposition, that, a.m., decision to enter the room without a war- The knew at 8:39 Walk- justified “by rant an rea- er had called the 911 dispatcher from a sonable belief that woman be in- Twice, grocery local store. dispatcher jured entry ‘necessary prevent and if assistance; asked Walker needed medical ” 1130, physical harm.’ at Id. twice, Walker refused. At the end of the Martinez, (hold- at also 1163-64 conversation, dispatcher Walker told the exigent justified no circumstances that, that her mother was with her and entry a warrantless where together, they would return to at the and scene found domestic abuse ment on 804 J Street. She informed the home, already victim outside the in the dispatcher stay that she would outside the Davis, yard); front United States v. 290 apartment. (10th Cir.2002) (finding F.3d 1243-44 officer, Rodriguez, first arrived at exigent justify no circumstances to war- a.m., 804 J Street at 8:43 three minutes entry, police responded rantless where to a after ended her 911 call. He testi- only call disturbance have the during fied the evidentiary hearing that it “appear any signs victim without [] would have taken him about two minutes harm”); Cunningham, v. United States grocery to drive from the store to the (8th Cir.1998) 1071-73 assuming Even that Walker (holding exigent justi- circumstances left the store immediately got after she off fied a warrantless of the home phone dispatcher with the 911 and that where received 911 call from a Street, she immediately headed to 804 J woman who identified herself and claimed she still only would have arrived back at being against that she was held her will about one minute before the where, scene, upon arriving at the police. That enough is not time for Black police “could hear a crying woman inside get somehow Walker back into the Davidson, apartment”); Tierney her, apartment, injure and to and then to (2d Cir.1998) (holding F.3d leave, as the theorizes could justified a warrant- Further, have been the point case. no entry less and search of a home where the during his apartment, time outside the responded reporting officer to a 911 call arrival, immediately even upon his did the and, arriving domestic disturbance any coming first officer hear noises from scene, spoke neighbors who in- inside the residence. formed him shouting “that the had ended arrival,” right before allowing thus The timeline of events in this case is reasonably officer to conclude that “both record, amply supported by courtesy house”). antagonists remained in the exceedingly precise log —one chronicles the relevant events down to the us, however, gov- the case before Vegas police millisecond—from the Las ernment points specific leading to no department’s communication center. Ac- “objectively reasonable” belief that Walker, cording log, to that know that following her call phone exactly called 911 at and that 8:39:3465 she somehow found herself back inside the spoke with a until dispatcher staying where Black was *9 that Rodriguez was therefore in 8:40:1749. We also know need of medical assis- Instead, exactly at tance. all of the facts 8:42:5825 and available to police that he morning point to the conclu- 804 J Street apart- again just sion that Walker was outside the over three minutes 8:43:2487— ment, trapped not within it. after Walker ended her 911 call. however, Neither, it constitute does call. these ignore majority prefers facts” and articulable “specific the kind of conjecture specifically, of favor — rational that, together with Black knew when “taken its inference inci- violence warrant- “support a domestic investigating inferences” would Howard, herself told F.2d at 555. dent because intrusion.” less call, re- hypothetically after the 911 like Instead, arguments, about government’s hypothe- This turning more nothing majority’s, amount however, with the sis, not accord does Id.2 “speculation.” than insufficient im- nigh unto that makes it timeline tight reasons, dissent. respectfully I For these returned to to have possible for Walker calling 911 but before after Rodriguez’s arrival. Officer
Moreover, hat on this by hanging its events, majority ignores its
version alternate, plausible, sce- but far more
own namely, that Black knew
nario — inci- a domestic violence America, UNITED STATES him that she told because Walker dent Plaintiff-Appellee, fleeing call 911 before hinge on inference does not ment. This Defendant-Appellant. BLACK, Jasper returning thus, majority’s and, unlike calling 911 No. 05-10640. pre- the timeline would fit into conjecture, Appeals, United States Court sented; majority dis- surprisingly, Ninth Circuit. under the Equally plausible it. misses yet chronological constraints is established April Black surmised possibility another —that investigate a had arrived to that the Damm, Schiess, R. Office Daniel Camille because of violence incident not NV, for Attorney, Vegas, Las of the U.S. did, simply said or but anything Walker Plaintiff-Appellee. just involved such because he had been Traum, Defend- R. Federal Public Anne short, morning. an incident earlier that NV, Office, Defendants Vegas, Las er’s majority analysis its only does the base Appellant. it theories conjecture, but pure the detailed not conform to spins out do and MARSHA Before B. FLETCHER the record establishes. timeline BERZON, Judges, Circuit S. sure, none of the information To be TRAGER,* Judge. Senior District affirmatively confirms the record Order; by Judge Dissent KOZINSKI. made her 911 was after she
where Walker they exception than were under majority, government’s aid doctrine I find 2. Unlike exception, I believe unconvincing equally when consid- argument ex- argument under this alternative that their "emergency aid doctrine.” ered under the warrant ception to the Fourth Amendment’s and the exi- emergency aid doctrine Both the requirement well. fails as exception require an "ob- gent circumstances * analysis. Trager, Unit- Because David G. Senior jective reasonableness” The Honorable Judge for the Eastern Dis- morning were no more ed States District police actions that York, sitting by designation. emergency trict of New "objectively reasonable” under