Newman v. Underhill

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL NEWMAN, No. 24-1493

D.C. No.

Plaintiff - Appellant,

5:23-cv-00033-SP

v.

TODD UNDERHILL, Deputy;

JONATHAN BARMER, Deputy; OPINION

LAUREN LAIDLAW; JAMES

BLANKENSHIP; COUNTY OF

SAN BERNARDINO,

Defendants - Appellees.

Appeal from the United States District Court

for the Central District of California

Sheri Pym, Magistrate Judge, Presiding

Argued and Submitted February 12, 2025

Pasadena, California

Filed April 23, 2025

Before: Susan P. Graber, David F. Hamilton, and Patrick J.

Bumatay, Circuit Judges. *

Opinion by Judge Graber

*

The Honorable David F. Hamilton, United States Circuit Judge for the

Court of Appeals, 7th Circuit, sitting by designation.

2 NEWMAN V. UNDERHILL

SUMMARY **

Fourth Amendment/Hot Pursuit Exception

The panel affirmed the district court’s summary

judgment for San Bernardino County Sheriff’s Department

deputies in an action brought pursuant to 42 U.S.C. § 1983

alleging Fourth Amendment violations when deputies

entered plaintiff’s home without a warrant while pursuing a

fleeing suspect.

The district court granted summary judgment to

defendants, reasoning, in relevant part, that no Fourth

Amendment violation occurred because the hot-pursuit

exception to the warrant requirement applied.

In affirming the district court, the panel first held that, as

a matter of law, defendants had probable cause for the

entry. Under the circumstances, a reasonable person in

Deputy Underhill’s shoes would have believed that there

was at least a fair probability that the suspect was in

plaintiff’s home. The panel next held that Underhill’s

pursuit of the suspect constituted an exigent situation

justifying the entry because the officers were in immediate

and continuous pursuit of a suspect from the scene of the

crime at the moment they made entry. Underhill gave chase

immediately after seeing the suspect fail to yield to a traffic

stop, a felony, and fleeing in his truck after being instructed

to stop. Notwithstanding the nine-minute delay between

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

NEWMAN V. UNDERHILL 3

Underhill losing sight of the suspect and Underhill entering

plaintiff’s home, the continuity of the chase remained intact.

COUNSEL

Alex Coolman (argued), Law Office of Alex Coolman, San

Diego, California, for Plaintiff-Appellant.

Daniel S. Roberts (argued), ColeHuber LLP, Ontario,

California, for Defendants-Appellees.

OPINION

GRABER, Circuit Judge:

Deputy Todd Underhill of the San Bernardino County

Sheriff’s Department gave chase when the driver of a truck

feloniously failed to heed Underhill’s instruction to stop.

The suspect eventually parked near Plaintiff Michael

Newman’s home, got out of the truck, and ran. Underhill

followed on foot but lost sight of the suspect somewhere near

the rear of the house. While waiting for backup, he searched

the surrounding area but did not find the suspect. When

another officer arrived, Underhill explained that he thought

the suspect could be inside the house and that the house’s

backdoor was unlocked. Less than ten minutes later,

Underhill and other officers entered the house and

discovered Plaintiff. After questioning the legality of their

entry, Plaintiff allowed the officers to search for the suspect

(Plaintiff’s roommate), whom the officers quickly found.

4 NEWMAN V. UNDERHILL

Plaintiff brought this action, raising both federal and state

claims predicated on an alleged violation of his Fourth

Amendment rights. The district court granted summary

judgment to Defendants, reasoning, in relevant part, that no

Fourth Amendment violation occurred because the hot-

pursuit exception to the warrant requirement applied.

Reviewing de novo, Perez v. City of Fresno, 98 F.4th 919,

924 (9th Cir. 2024), we affirm.

BACKGROUND

In the early hours of July 27, 2022, Sheriff’s Deputy

Todd Underhill attempted to pull over a black Chevy

Silverado that had an expired registration and an

unilluminated license plate. The Silverado’s driver—later

identified as Richard Delacruz—fled, and Underhill

immediately pursued. Eventually, Delacruz got out of his

truck on a dead-end street and ran away on foot. Underhill

followed, also on foot, stopping briefly to “clear” the

Silverado before continuing the pursuit.

Having lost sight of Delacruz, Underhill reported to

dispatch that Delacruz had been “[l]ast seen toward the

residence at 4083 Camellia Drive”—Plaintiff Michael

Newman’s home. The house sits on a hill, with “drop offs”

between it and adjacent properties and with fencing—which,

in some places, is only waist high—around the perimeter of

the backyard. 1

Underhill ran toward Plaintiff’s backyard and, not seeing

Delacruz, decided to wait for backup before continuing the

1

Underhill later declared that he saw Delacruz “open a gate and go into

the backyard” and heard “a noise consistent with a door opening and

closing,” although Underhill mentioned those details in neither his

incident report nor his probable-cause statement.

NEWMAN V. UNDERHILL 5

pursuit. Deputy Jonathan Barmer arrived roughly two

minutes later. According to the transcript of the audio from

Underhill’s belt recorder, Underhill told Barmer that

Delacruz had gone “somewhere over to the rear of the

residence.” 2 Underhill also stated that he “th[ought],” but

did not “know,” that Delacruz “may” have entered Plaintiff’s

home.

Underhill and Barmer searched the backyard for

Delacruz with their flashlights, while deputies in a Sheriff’s

Department helicopter looked for heat signatures from

overhead. The deputies neither saw any sign of Delacruz nor

heard any noises—such as the rattling of a fence—to suggest

that he had left the backyard. For their part, the deputies in

the helicopter detected heat coming from Plaintiff’s home

but could not confirm who or what was emitting it.

During or shortly after inspecting the backyard,

Underhill noticed something about Plaintiff’s backdoor.

Underhill’s belt-recorder first captured him saying: “Yeah[,]

because he came and locked that door, dude.” It is not clear

from the record what Underhill meant by that statement.

Underhill was also recorded stating: “We got an unlocked

rear door.” Underhill later testified at his deposition that the

backdoor had been “slightly ajar[].”

About seven minutes after Delacruz fled his truck on

foot, Underhill began announcing the Sheriff’s

Department’s presence and ordering any occupants of the

home to exit. Underhill continued to make those

announcements for another two minutes. During that period,

2

The record before us contains competing and somewhat inconsistent

transcripts of this recording, but not the recording itself. Because we are

reviewing a summary judgment in Defendants’ favor, we rely on

Plaintiff’s submission.

6 NEWMAN V. UNDERHILL

Underhill heard at least one voice coming from inside the

house, and Deputy Lauren Laidlaw arrived at the scene.

Roughly nine minutes after last seeing Delacruz,

Underhill—accompanied by Laidlaw and Barmer—entered

Plaintiff’s home through the backdoor. Hearing Plaintiff’s

voice coming from elsewhere in the house, Underhill found

Plaintiff’s room and discovered that Plaintiff is “a

quadriplegic in a wheelchair.” During their ensuing

conversation, which grew contentious at times, Plaintiff told

Underhill that his roommate drove a black Chevy Silverado.

About eight minutes after Underhill entered the house,

Sergeant James Blankenship joined Underhill and Plaintiff.

After another four minutes of conversation, Plaintiff gave

the officers consent to look for his roommate in a different

part of the house. The officers quickly found and arrested

Delacruz, who was later convicted of a felony—evading a

peace officer with wanton disregard for safety, in violation

of California Vehicle Code section 2800.2(a).

Plaintiff sued Defendants Underhill, Laidlaw, and

Blankenship, asserting a claim under 42 U.S.C. § 1983 for

unreasonable search in violation of the Fourth Amendment.

The operative complaint also lists two state-law causes of

action. 3 The district court entered summary judgment in

favor of Defendants on all claims. Plaintiff timely appeals.

DISCUSSION

All three of Plaintiff’s claims are predicated on the

allegation that Defendants violated Plaintiff’s Fourth

3

Additionally, Plaintiff brought a claim under Monell v. Department of

Social Services, 436 U.S. 658 (1978), against San Bernardino County.

The district court granted summary judgment to the County on that

claim, a decision that Plaintiff does not challenge in this appeal.

NEWMAN V. UNDERHILL 7

Amendment rights when they entered his home without a

warrant. 4 Because the record before us does not support that

allegation, each of Plaintiff’s claims fails. 5

Under the Fourth Amendment’s guarantee against

unreasonable searches, one’s home is “the most

constitutionally protected place on earth.” United States v.

Craighead, 539 F.3d 1073, 1083 (9th Cir. 2008); see also,

e.g., Fisher v. City of San Jose, 558 F.3d 1069, 1082 (9th

Cir. 2009) (en banc) (“[T]he home is perhaps the most

sacrosanct domain, where one’s Fourth Amendment

interests are at their zenith.”); Florida v. Jardines, 569 U.S.

1, 6 (2013) (describing “the home” as the “first among

equals”). Accordingly, the government ordinarily may not

search someone’s home without “a criminal warrant

supported by probable cause.” United States v. Grey, 959

F.3d 1166, 1177 (9th Cir. 2020).

Nonetheless, there are a few narrow exceptions to the

warrant requirement. Sandoval v. Las Vegas Metro. Police

Dep’t, 756 F.3d 1154, 1161 (9th Cir. 2014). As relevant

here, “the exigencies of [a] situation” sometimes “make the

needs of law enforcement so compelling that [a] warrantless

search is objectively reasonable.” Lange v. California, 594

U.S. 295, 301 (2021) (second alteration in original) (quoting

Kentucky v. King, 563 U.S. 452, 460 (2011)). Situations

4

Most of Plaintiff’s arguments are framed as critiques of the district

court’s construction of the evidence. But because our review is de novo,

we do not consider whether “the district court gave insufficient

attention” to certain aspects of the record. Tanadgusix Corp. v. Huber,

404 F.3d 1201, 1205 n.5 (9th Cir. 2005).

5

We therefore do not address the parties’ arguments pertaining to

(1) qualified immunity’s “clearly established law” prong or

(2) secondary questions regarding Plaintiff’s state-law causes of action.

8 NEWMAN V. UNDERHILL

involving “the hot pursuit of a fleeing suspect” can fit that

description. United States v. Struckman, 603 F.3d 731, 743

(9th Cir. 2010). Underlying the so-called hot-pursuit

exception is the principle that “a suspect may not defeat an

arrest which has been set in motion in a public place . . . by

the expedient of escaping to a private place.” United States

v. Santana, 427 U.S. 38, 43 (1976).

To rely on the hot-pursuit exception, Defendants must

establish that (A) they had probable cause to search

Plaintiff’s home and (B) “exigent circumstances”—here, the

pursuit of a fleeing suspect—“justified the warrantless

intrusion.” United States v. Johnson, 256 F.3d 895, 905 (9th

Cir. 2001) (en banc) (per curiam). On this record, we hold

that Defendants have satisfied both requirements as a matter

of law.

A. Probable Cause

To establish probable cause in this case, Defendants

must show that, when Underhill entered Plaintiff’s home,

“the ‘facts and circumstances’ before [him were] sufficient

to warrant a person of reasonable caution to believe” that

Delacruz would be found therein. Id. at 905; see also United

States v. Scott, 520 F.2d 697, 700 (9th Cir. 1975) (framing

the question of probable cause, in a case about the

“exigencies of hot pursuit,” as “whether the officers . . . had,

at the time of entry, probable cause to believe that the

fugitives they sought were there”). As that description

suggests, and despite Plaintiff’s contention to the contrary,

“probable cause means ‘fair probability,’ not certainty or

even a preponderance of the evidence.” United States v.

Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (en banc)

(emphasis added) (quoting Illinois v. Gates, 462 U.S. 213,

246 (1983)). “Whether there is a fair probability . . . is a

NEWMAN V. UNDERHILL 9

‘commonsense, practical question’” that “depends upon the

totality of the circumstances, including reasonable

inferences.” United States v. Kelley, 482 F.3d 1047, 1050

(9th Cir. 2007) (quoting Gourde, 440 F.3d at 1069).

To create a genuine factual dispute regarding probable

cause, Plaintiff relies on the purported presence of

“ambiguity” in the record as to “when and where

exactly . . . Underhill lost track of [Delacruz].” But to the

extent that any such ambiguity exists, it is immaterial. The

following facts are not in dispute: (1) Underhill saw

Delacruz running toward the back of the house;

(2) Underhill, having searched the area, knew that Delacruz

was not hiding in the backyard; (3) if Delacruz had tried to

move from the backyard to an adjacent property, he would

have been hindered by fencing and by drop-offs in the

terrain; (4) Underhill found the backdoor unlocked; and

(5) as demonstrated by his contemporaneous statements,

Underhill perceived someone interacting with the backdoor

at some point during the pursuit. 6 Faced with those

circumstances, a reasonable person in Underhill’s shoes

would have believed that there was at least a fair probability

that Delacruz was in Plaintiff’s home. We do not see, and

Plaintiff does not identify, anything in the record to dispel

such a reasonable belief.

We therefore hold that, as a matter of law, Defendants

had probable cause to believe that Delacruz was inside

6

We need not resolve whether a reasonable juror necessarily would

credit Underhill’s statement—made only in a declaration—that he

“heard . . . a noise consistent with a door opening and closing” after

seeing Delacruz enter Plaintiff’s backyard. Even disregarding that

statement, the undisputed evidence described in the text demonstrates the

absence of a genuine dispute of material fact regarding probable cause.

10 NEWMAN V. UNDERHILL

Plaintiff’s home. See Johnson v. Barr, 79 F.4th 996, 1003

(9th Cir. 2023) (explaining that summary judgment on the

issue of probable clause is appropriate only “when there is

no genuine issue of fact and if ‘no reasonable jury could find

an absence of probable cause under the facts’” (quoting

Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994))).

B. Hot Pursuit

In addition to establishing probable cause, Defendants

must show that Underhill’s pursuit of Delacruz constituted

an exigent situation justifying the entry into Plaintiff’s home.

Johnson, 256 F.3d at 907.

In our circuit, a “hot pursuit” excuses a warrantless

intrusion into the home only if the “officers [were] in

‘immediate’ and ‘continuous’ pursuit of a suspect from the

scene of the crime” at the moment they made entry. Id.

(quoting Welsh v. Wisconsin, 466 U.S. 740, 753 (1984)).

Other relevant considerations include “the gravity of the

underlying offense for which the arrest is being made,” id. at

908 (quoting Welsh, 466 U.S. at 753), and whether “the

officers encroached on the property of a person who did not

create the exigent circumstances and was completely

unrelated to the suspect and his [crimes],” id. at 909.

In this case, we need deal only with the exception’s

“immediacy” and “continuity” requirements. Respecting the

gravity of the offense, Plaintiff does not dispute that

Underhill observed Delacruz committing a felony.

Although the Supreme Court has not decided whether all

felonies give the police license to chase someone into their

home without a warrant, see Lange, 594 U.S. at 304–05

(assuming, but not deciding, that “fleeing-felon cases . . .

always present[] exigent circumstances”) (emphasis

omitted); Johnson, 256 F.3d at 908 n.6 (“In situations where

NEWMAN V. UNDERHILL 11

an officer is truly in hot pursuit and the underlying offense

is a felony, the Fourth Amendment usually yields.”

(emphasis added)), we need not resolve that question

because Plaintiff does not argue that Delacruz’s crime fails

to qualify for the “hot pursuit” exception. And no party

discusses the effect of Plaintiff’s relationship to Delacruz, a

factor that, in general, “[v]ery few cases have considered.”

Johnson, 256 F.3d at 909.

1. Immediacy

We need not dwell long on the question of immediacy.

It is undisputed that Underhill gave chase “immediately”

after seeing Delacruz fail to yield to a traffic stop—thereby

committing a felony—and flee in his truck.

Plaintiff suggests that, in this context, “immediate”

means that the warrantless search must “follow immediately,

in a temporal sense, from the underlying pursuit.” But that

interpretation would render the word “continuous”—which,

on its own, denotes that a pursuit stops being “hot” once it

ends—meaningless. More to the point, Johnson made clear

that an officer satisfies the requirement of immediacy if the

officer gives chase as soon as the suspect flees from the

scene of the crime. See id. at 907 (asking whether the

officers were in “immediate . . . pursuit of a suspect from the

scene of the crime” (emphasis added) (internal quotation

marks omitted)).

2. Continuity

Plaintiff argues that, because nine minutes elapsed

between Underhill’s losing sight of Delacruz and

Underhill’s entering Plaintiff’s home, a genuine dispute of

material fact exists regarding the continuity of the pursuit.

We disagree.

12 NEWMAN V. UNDERHILL

Johnson contains our most thorough exploration of the

continuity requirement. There, the suspect fled into the

woods, and the officer—concerned for his safety—decided

not to follow until backup arrived. Johnson, 256 F.3d at

907–08. While waiting for his colleagues, the officer

returned to the scene of his initial confrontation with the

suspect. Id. at 907. Thirty minutes passed, during which

time the suspect “was free to run,” and during which time

the police neither saw the suspect nor “received [any] new

information about where [he] had gone.” Id. at 908.

Addressing the hot-pursuit exception, we made clear that, in

certain circumstances, the decision to wait for backup

“delay[s], but [does] not br[eak],” the “‘continuity’ of the

chase.” Id. We explained, however, that because the

officers in Johnson had no clue where the suspect was for

more than 30 minutes, the chase’s continuity had been

“clearly broken.” Id.

We discern two interrelated considerations underlying

the distinction that Johnson drew between “delayed

continuity” and “broken continuity.” First, we focused on

whether, and to what degree, the officers lost track of the

suspect’s whereabouts. On one end of the spectrum, the

continuity of the chase is more likely to survive when “police

officers always kn[o]w exactly where the suspect [is].” Id.

(emphasis added). On the other end sit cases like Johnson,

in which the officers “no longer had any idea where [the

suspect] was” by the time they resumed their search. Id.

(emphasis added). Second, we examined whether the

officers, after losing sight of the suspect, continued to act

with speed in attempting to apprehend the suspect. In

Johnson, the government’s “continuity” showing was

undermined by the fact that the officer did not “monitor [the

suspect’s] movements while waiting for his backup to

NEWMAN V. UNDERHILL 13

arrive,” but instead went to retrieve an item that he had

dropped earlier. Id. Relevant to both considerations is the

question of timing. The more time passes without the

officer’s physically chasing after the suspect—whether

because the officer loses track of the suspect or because the

officer stops attempting to apprehend the suspect—the more

likely the continuity of the chase is to break. See id.

(stressing that the suspect was left “free to run for over a half

hour”). 7

Applying those principles to the undisputed facts in the

record, we conclude that, when Underhill entered Plaintiff’s

home, the continuity of the chase remained intact.

Regarding the first consideration identified above, the nine-

minute “pause” identified by Plaintiff is far shorter than the

30-minute period at issue in Johnson. The undisputed

evidence supporting the existence of probable cause also

demonstrates that, during those nine minutes, Underhill had

a reasonably good idea where Delacruz was hiding. 8

7

Because “the Fourth Amendment ultimately turns on the

reasonableness of the officer’s actions in light of the totality of the

circumstances,” Struckman, 603 F.3d at 743, we do not suggest that these

are the only considerations that might ever factor into a court’s

continuity-of-pursuit analysis. Still, we note that the D.C. Circuit has

taken an approach similar to ours. See United States v. Dawkins, 17 F.3d

399, 407 (D.C. Cir.) (“[S]peed and a continuous knowledge of the

alleged perpetrator’s whereabouts are the elements which underpin th[e]

[hot-pursuit] exception . . . .” (quoting United States v. Lindsay, 506

F.2d 166, 173 (D.C. Cir. 1974))), amended, 327 F.3d 1198 (D.C. Cir.

1994).

8

The probable-cause and exigent-circumstances inquiries often overlap

to some degree. See United States v. Brooks, 367 F.3d 1128, 1135 (9th

Cir. 2004) (“Many of the same facts that showed probable cause to

suspect evidence of crime are also relevant to show Perez’s exigent need

to enter.”).

14 NEWMAN V. UNDERHILL

Johnson’s second variable points in the same direction. Far

from leaving the trail to await backup, Underhill spent most,

if not all, of the nine minutes in question actively working to

find and apprehend Delacruz. He searched the backyard,

announced the Sheriff’s Department’s presence, and

coordinated with fellow officers—including those keeping

watch from a helicopter. Conversely, Plaintiff points to no

evidence that would allow us to infer that Defendants ceased

their pursuit of Delacruz after Underhill lost sight of him.

In sum, on this record there is no genuine issue of

material fact suggesting that the continuity of the chase was

broken before Underhill entered Plaintiff’s home.

AFFIRMED.