Huff v. City of Burbank

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE ROBERT HUFF; MARIA 

HUFF; and VINCENT HUFF,

No. 09-55239

Plaintiffs-Appellants,

D.C. No.

v.

 2:07-cv-04114-

CITY OF BURBANK; DARIN RYBURN; FMC-AJW

EDMUNDO ZEPEDA; CHRIS ROBERTS;

OPINION

and FERNANDO MUNOZ,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Florence-Marie Cooper, United States District Judge,

Presiding

Argued and Submitted

June 8, 2010—Pasadena, California

Filed January 11, 2011

Before: Alex Kozinski, Chief Circuit Judge,

Johnnie B. Rawlinson, Circuit Judge, and

Algenon L. Marbley, United States District Judge.*

Opinion by Judge Marbley;

Partial Concurrence and Partial Dissent by Judge Rawlinson

*The Honorable Algenon L. Marbley, United States District Judge for

the Southern District of Ohio, sitting by designation.

615

HUFF v. CITY OF BURBANK 619

.

COUNSEL

Leo James Terrell (argued) and Erikson M. Davis, Law

Offices of Leo James Terrell, Beverly Hills, California, for

the plaintiffs-appellants.

Calvin House (argued), Gutierrez, Preciado & House, LLP,

Pasadena, California, for the defendants-appellees.

620 HUFF v. CITY OF BURBANK

OPINION

MARBLEY, District Judge:

Plaintiffs George, Maria, and Vincent Huff appeal the dis-

trict court’s judgment in favor of four officers who entered

their home without a warrant. For the reasons below, we find

that only two of the four officers were entitled to qualified

immunity.

I. BACKGROUND

On June 1, 2007, the four officers responded to a call from

Bellarmine-Jefferson High School. At Bellarmine, they

learned of a rumor about a letter that said that Vincent, a stu-

dent there, was going to “shoot up” the school. The principal,

Sister Milner, told Sergeant Ryburn and Officer Zepeda that

Vincent had not been at school in two days, that she was con-

cerned about the threat and the safety of her students, that

some parents had kept their students home, and that she

wanted the police to investigate. After conducting interviews

with Sister Milner and two students, the officers could not

confirm the existence of any threatening letter.

The officers decided to go to the home of George; Maria,

his wife; and Vincent, their son, to interview the family and

continue their investigation. Before leaving Bellarmine, the

officers asked Sister Milner to make sure that no one con-

tacted the Huffs to inform them that the Burbank Police were

on the way to their home. When the officers arrived in the

vicinity of the Huff home, they parked their cars away from

the residence so that the Huffs would not see them approach-

ing.

Upon arrival at the Huff residence, Zepeda knocked on the

door and announced that the officers were with the Burbank

Police Department. When no one responded, Ryburn called

the home telephone number, and though the officers could

HUFF v. CITY OF BURBANK 621

hear the telephone ringing inside the house, no one answered.

Ryburn then called Maria on her cell phone, which she

answered. Ryburn identified himself and indicated he wanted

to talk to Maria about her son Vincent. Maria then hung up

the phone.

Two minutes later Maria and Vincent came out of the

house and stood on the front steps in front of Ryburn and

Zepeda. Zepeda told Vincent that the Officer Defendants were

there to talk about some threats at the school, to which Vin-

cent replied “I can’t believe you’re here for that.” (ER 78:22-

23.) The officers concede that when they encountered Vincent

outside of the Huff residence, they did not have probable

cause to enter the home.3 (1 RT 44:3-9.) Ryburn approached

Maria and asked if they could go inside the house to talk. She

said, “No,” because the Officer Defendants did not have a

warrant. (ER 78:24-25; 2 RT 44:1-8, 96:18-97:8.) Ryburn

then asked Maria if there were any guns in the home. Maria

testified that she responded that she would go get her hus-

band. Maria then turned around and went into the house.

3

Officer Roberts testified explicitly at the hearing that when he followed

Sergeant Ryburn into the house, he did not believe that they had probable

cause. He testified as follows:

Q: And you were going inside the Huff residence, you never,

ever saw any criminal conduct; isn’t that true?

A Correct.

Q: You never saw anything that gave you probable cause that

any of your fellow officers were about to be injured or in

danger of their lives; isn’t that true?

A: Correct.

(1 RT 44:3-9.) Sergeant Ryburn testified that when he left Bell-Jeff for the

Huff residence, he had “reasonable suspicion to detain Vincent Huff.” (2

RT 9:18-21.) Reasonable suspicion does not rise to the level of probable

cause. See Alabama v. White, 496 U. S. 325, 330 (1990) (“Reasonable sus-

picion is a less demanding standard than probable cause . . .”). Finally, at

oral argument, defense counsel conceded that the Officer Defendants did

not have probable cause when they arrived at the Huff residence or when

Mrs. Huff entered her residence.

622 HUFF v. CITY OF BURBANK

Ryburn followed Maria into the house. Ryburn acknowl-

edges that, at this point, Maria was not detained or arrested,

and that she was free to leave from where she had been stand-

ing and speaking with Ryburn and Zepeda. Vincent then

entered the residence, followed by Zepeda. Zepeda entered

the home because of “officer safety” concerns. (ER 79:3-4.)

Since the officers were there to investigate threats to shoot, he

did not want Ryburn to enter the house alone. The other two

officers, Munoz and Roberts, had been standing near the side-

walk, unable to hear any of the conversation between Maria,

Vincent, Ryburn, and Zepeda. After Ryburn and Zepeda

entered the Huff residence, Munoz and Roberts assumed that

Maria and Vincent had given consent and entered the home.

After entering the Huff residence, the officers remained in

the living room. George entered the room and challenged the

authority of the police to be in his home. The officers

remained inside the Huff home for five to ten minutes, talking

with the Huff family. The officers satisfied themselves that

the rumors about the threats at Bellarmine were untrue. They

then left the Huff residence and returned to the school to

report their conclusions. At no time while the officers were in

the Huff home did they conduct any search of George, Maria,

Vincent, or any property.

After the officers returned to Bellarmine, Ryburn suggested

to Sister Milner that she send out a notice to the parents of

Bellarmine’s students informing them that there was no such

threat or letter. As a result of speaking with Ryburn about the

morning’s events, Sister Milner sent a letter to parents, which

explained that there was no truth to the rumor about a student

threatening to shoot anyone.

The Huffs initiated this action, which sought compensatory

and punitive damages, alleging that their constitutional rights

had been violated when the police entered their home. After

holding a two-day bench trial, the district court held that exi-

gent circumstances permitted the police’s warrantless entry

HUFF v. CITY OF BURBANK 623

into the Huff residence and that the officers were entitled to

qualified immunity. The Huffs appeal.

II. LAW AND ANALYSIS

A. Findings of Fact

The Federal Rules of Civil Procedure require that the dis-

trict court make findings of fact and conclusions of law in all

cases tried without a jury. Fed. R. Civ. P. 52(a). The factual

findings must be sufficient to indicate the factual basis of the

district court’s ultimate conclusions. Kelley v. Everglades

Drainage Dist., 319 U.S. 415, 422 (1943); Vance v. Am. Haw.

Cruises, Inc., 789 F.2d 790, 792 (9th Cir. 1986). It is also not

“necessary that the trial court make findings asserting the neg-

ative of each issue of fact raised.” Carr v. Yokohama Specie

Bank, Ltd., of San Francisco, 200 F.2d 251, 255 (9th Cir.

1953). The district court’s findings should be “explicit enough

to give the appellate court a clear understanding of the basis

of the trial court’s decision, and to enable it to determine the

ground on which the trial court reached its decision.” Alpha

Distrib. Co. of Cal. v. Jack Daniel Distillery, 454 F.2d 442,

453 (9th Cir. 1972) (citing Irish v. United States, 225 F.2d 3,

8 (9th Cir. 1955).

The district court’s findings of fact are reviewed under the

clearly erroneous standard. Zivkovic v. S. Cal. Edison Co.,

302 F.3d 1080, 1088 (9th Cir. 2002). This review for clear

error is “significantly deferential,” and the reviewing court

“must accept the district court’s factual findings absent a ‘def-

inite and firm conviction that a mistake has been commit-

ted.’ ” Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002)

(quoting United States v. Syrax, 235 F.3d 422, 427 (9th Cir.

2000). This Court may not reverse the district court even

though we may be convinced we would have weighed the evi-

dence differently had we been the trier of fact. Phoenix Eng’g

and Supply Inc. v. Universal Elec. Co., Inc., 104 F.3d 1137,

624 HUFF v. CITY OF BURBANK

1141 (9th Cir. 1997) (citing Anderson v. Bessemer City, N.C.,

470 U.S. 564, 674 (1985)).

The Huffs argue that the district court erred in several find-

ings of fact. First, the Huffs assert that the district court did

not resolve conflicting testimony regarding: (1) whether

Maria knew why the police were at her home before she went

outside; (2) why Maria hung up her cell phone on Ryburn

before proceeding outside to speak with the police; (3)

whether Maria answered Ryburn’s questions about whether

there were any guns inside the Huff residence; (4) whether

Maria told the officers she was going back into the house to

get her husband; and (5) Maria’s whereabouts upon returning

inside the Huff residence. Second, the Huffs contend that the

district court did not state that it was undisputed that Maria

was free to return to her home. Third, the Huffs believe the

district court erroneously failed to state why Ryburn went into

the Huff residence.

The district court was not clearly erroneous in its findings

such that reversal by this Court would be appropriate. That we

may have weighed the testimony of the witnesses and other

evidence in another manner, thus reaching different findings

of fact, is not a proper basis for reversal. Phoenix Eng’g and

Supply Inc., 104 F.3d at 1141. The Federal Rules of Civil Pro-

cedure require “the reviewing court [to] give due regard to the

trial court’s opportunity to judge the witnesses’ credibility.”

Fed. R. Civ. P. 52(a)(6). Accordingly, we’ve held that

“[w]here there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly errone-

ous.” United States v. Working, 224 F.3d 1093, 1102 (9th Cir.

2000) (en banc) (quoting Anderson v. City of Bessemer, 470

U.S. 564, 573-74 (1985)). Here, the district court needed only

to find the facts sufficient to indicate the basis for its ultimate

legal conclusions. The district court was not required to find

all possible facts, or to state explicitly why it had chosen to

believe the testimony of the officers over Maria. Additionally,

because the court found that exigent circumstances justified

HUFF v. CITY OF BURBANK 625

the warrantless entry into the Huff residence, the court was

not required to state Ryburn’s reason for entering the home.

Accordingly, the district court’s findings of fact are not

clearly erroneous.

B. Fourth Amendment Violation

[1] The Fourth Amendment provides that “[t]he right of

the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not

be violated.” U.S. CONST. amend. IV. Physical entry into the

home is “the chief evil against which the wording of the

Fourth Amendment is directed.” United States v. U.S. Dist.

Court, 407 U.S. 297, 313 (1972); see also Murdock v. Strout,

54 F.3d 1437, 1440 (9th Cir. 1995) (“[T]he protection of indi-

viduals from unreasonable government intrusion into their

houses remains at the very core of the Fourth Amendment.”).

Therefore, “[t]o safeguard the home, we normally require a

warrant before the police may enter.” Frunz v. City of

Tacoma, 468 F.3d 1141, 1142-43 (9th Cir. 2006). Without a

search warrant, the “search of a house is per se unreasonable,

and absent exigency or consent, warrantless entry into the

home is impermissible under the Fourth Amendment.” United

States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990) (inter-

nal citation omitted). The existence of exigent circumstances

is a mixed question of law and fact that we review de novo.

United States v. Reilly, 224 F.3d 986, 991 (9th Cir. 2000).

In this case, the district court found that “a constitutional

violation occurred” when “the officers made a warrantless

entry into plaintiffs’ home,” and acknowledged that “[a]n

exception to the warrant requirement is the existence of exi-

gent circumstances.” (ER 79:23-25, 80:24-25.) It is not clear

whether the district court actually found that there were exi-

gent circumstances present to justify entry into the home or if

the district court merely found that the officers reasonably

believed that exigent circumstances were present such that

626 HUFF v. CITY OF BURBANK

they are entitled to qualified immunity despite their Fourth

Amendment violation. The threshold issue before this Court,

therefore, is whether there were exigent circumstances that

justified the warrantless entry into the Huff home.

1. Exigent Circumstances of Officer Safety

[2] Because the Officer Defendants had no warrant to

search the Huff home, and were not given consent to enter the

residence by either Maria or Vincent, their entry into the

house is constitutionally impermissible unless exigent circum-

stances are present. See id. There are exigent circumstances to

justify a warrantless entry by police officers into a home if the

officers have a reasonable belief that their entry is “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.” Fisher v. City of San Jose, 558 F.3d

1069, 1075 (9th Cir. 2009). We have stated that “the exigent

circumstance does not, however, relieve the police of the need

to have probable cause.” United States v. Johnson, 256 F.3d

895, 905 (9th Cir. 2001) (en banc). In Johnson, we stated that

“when the government relies on the exigent circumstances

exception, it . . . must satisfy two requirements: first, the gov-

ernment must prove that the officer had probable cause to

search the house; and second, the government must prove that

exigent circumstances justified the warrantless intrusion.” Id.;

see also United States v. Ojeda, 276 F.3d 486, 488 (9th Cir.

2002) (per curiam).

The Supreme Court has stated that “the police bear a heavy

burden when attempting to demonstrate an urgent need that

might justify warrantless searches or arrests.” Welsh v. Wis-

consin, 466 U.S. 740, 749-50 (1984); see also Minnesota v.

Olson, 495 U.S. 91, 100 (1990) (“[I]n the absence of hot pur-

suit there must be at least probable cause to believe that one

or more of the other factors justifying the entry were present

. . . .”). We have further explained that police officers can

HUFF v. CITY OF BURBANK 627

meet their heavy burden only by showing “specific and

articulable facts” that justify a finding of exigent circum-

stances. LaLonde v. Cnty. of Riverside, 204 F.3d 947, 957 (9th

Cir. 2000) (quoting United States v. Shephard, 21 F.3d 933,

938 (9th Cir. 1994)). Mere speculation is not enough to estab-

lish exigent circumstances. See United States v. Suarez, 902

F.2d 1466, 1468 (9th Cir. 1990) (finding that speculation

about the presence of drugs on the premises and the danger

of their destruction is not sufficient to show exigent circum-

stances); United States v. Driver, 776 F.2d 807, 810 (9th Cir.

1985) (“[T]his burden is not satisfied by leading a court to

speculate about what may or might have been the circum-

stances.”). The Supreme Court has recognized only a few

such conditions that constitute exigent circumstances. See,

e.g., Michigan v. Tyler, 436 U.S. 499, 509 (1978) (ongoing

fire); United States v. Santana, 427 U.S. 38, 42-43 (1976) (hot

pursuit of a fleeing felon); Warden v. Hayden, 387 U.S. 294,

298-99 (1967) (same); Schmerber v. California, 384 U.S. 757,

770-71 (1966) (destruction of evidence).

[3] In addition to exigency, officers must have probable

cause. “Officers have probable cause for a search when ‘the

known facts and circumstances are sufficient to warrant a man

of reasonable prudence in the belief that contraband or evi-

dence of a crime will be found.’ ” United States v. Henderson,

241 F.3d 638, 648 (9th Cir. 2000) (quoting Ornelas v. United

States, 517 U.S. 690, 696 (1996)). Probable cause is deter-

mined based on “the totality of the circumstances known to

the officers at the time.” United States v. Alaimalo, 313 F.3d

1188, 1193 (9th Cir. 2002).

[4] Here, the police did not have, nor did the district court

find, probable cause to believe that an offense had been or

was being committed.4 See United States v. Lopez, 482 F.3d

4

The Officer Defendants argue that the constitutional requirements of

probable cause and a warrant exist only where an intrusion results in a

deprivation of liberty or property. The Officer Defendants take the posi-

628 HUFF v. CITY OF BURBANK

1067, 1072 (9th Cir. 2007) (outlining the probable cause stan-

dard requiring that officers “have knowledge or reasonably

trustworthy information sufficient to lead a person of reason-

able caution to believe that an offense has been or is being

committed by the person being arrested”). And “Supreme

Court and Ninth Circuit cases unequivocally hold that proba-

ble cause is a precondition for any warrantless entry to seize

a person in his home.” LaLonde, 204 F.3d at 954. Indeed, the

police testified that they did not think a crime had been or was

being committed and that they had no reason to detain Maria

or Vincent. The only arguable way we could find exigent cir-

cumstances would be to find that Maria’s behavior “would

cause a reasonable person to believe that entry . . . was neces-

sary to prevent physical harm to the officers or other per-

sons.” United States v. McConney, 728 F.2d 1195, 1199 (9th

Cir. 1984).

[5] Additionally, there were no exigent circumstances. The

Officer Defendants were not pursuing a fleeing felon. The

Officer Defendants were not trying to prevent the destruction

of contraband or evidence. No crime had been committed. No

crime was in progress.

Here, the district court held:

tion that where there is merely an intrusion, “it should be sufficient that

exigent circumstances exist.” Id. The Supreme Court has not embraced the

view that the existence of a constitutional violation should be determined

by the events that happen after police officers make a warrantless entry

into a home. See Payton v. New York, 445 U.S. 573, 589-90 (1980) (“But

the critical point is that any differences in the intrusiveness of entries to

search and entries to arrest are merely ones of degree rather than kind . . .

[because] the Fourth Amendment has drawn a firm line at the entrance to

the house.”); see also LaLonde, 204 F.3d at 954-55 (“Payton specifically

reversed the lower court opinion which had relied on the premise that a

warrantless entry to seize a person within the home can be held to a lower

standard than a warrantless entry to search and seizure property within a

home.”).

HUFF v. CITY OF BURBANK 629

[T]he officers testified that a number of factors led

them to be concerned for their own safety and for the

safety of other persons in the residence: the unusual

behavior of the parents in not answering the door or

the telephone; the fact that Mrs. Huff did not inquire

about the reason for their visit or express concern

that they were investigating her son; the fact that

they hung up the telephone on the officer; the fact

that she refused to tell them whether there were guns

in the house; and finally that she ran back into the

house while being questioned. That behavior, com-

bined with the information obtained at the school —

that Vincent was a student who was a victim of bul-

lying, who had been absent from school for two

days, and who had threatened to shoot up the school

— led the officers to believe that there could be

weapons inside the house, and that family members

or the officers themselves were in danger.

(ER 81:4-15.)

[6] These facts relied upon by the district court in its legal

conclusions amount to mere speculation. They do not satisfy

the heavy burden required for a finding of exigent circum-

stances. That the Huffs did not answer their door or telephone

may be “unusual,” but it did not create exigent circumstances.

Hopkins v. Bonvicino, 573 F.3d 752, 765 (9th Cir. 2009)

(“[N]othing requires an individual to answer the door in

response to a police officer’s knocking.”). The district court

was incorrect in finding that Maria Huff’s failure to inquire

about the reason for the officers’ visit, or her reluctance to

speak with the officers and answer questions, were exigent

circumstances. “[T]o the extent that the officers reasonably

perceived [Maria] to be antagonistic, they were still not at lib-

erty to enter [her home] under these circumstances.” LaLonde,

204 F.3d at 957 n.16. Nothing in the district court’s findings

of fact states that Maria did not inquire about the reason for

the officers’ visit or express concern that they were investigat-

630 HUFF v. CITY OF BURBANK

ing her son. Nothing in the district court’s findings of fact

indicates that Maria was not free to leave and return to her

home, or that any of the officers had indicated that she was

either required to answer their questions or restricted from

returning to the inside of her house. Additionally, Maria did

answer her cell phone when Ryburn called, spoke to him on

the telephone, and went outside with her son Vincent upon

learning they were present at her residence. She was under no

obligation to invite the officers into her home. Indeed, our

Constitution protects her decision to refuse the police entry

into her home when they did not possess a warrant. See

Silverman v. United States, 365 U.S. 505, 511 (1961) (“At the

very core [of the Fourth Amendment] stands the right of a

man to retreat into his own home and there be free from

unreasonable governmental intrusion.”).

[7] Further, “the officers’ assertion of a potential threat to

their safety must be viewed in the context of the underlying

offense.” LaLonde, 204 F.3d at 957 n.16. Here, there was no

underlying offense; the officers were investigating rumors of

threats. We have stated that:

[t]he mere fact that a person owns a rifle and does

not like law enforcement officials does not in itself

allow police officers to enter the person’s home and

seize him simply because he is unwilling to step into

the public domain for questioning, even if probable

cause exists to believe that some offense has been

committed.

Id. In LaLonde, we found no exigent circumstances where

probable cause existed; a fortiori, we should not find exigent

circumstances where it is undisputed that no probable cause

existed. It is also significant that Munoz and Roberts, two

officers fully briefed on the background information preced-

ing the officers’ visit to the Huff home and present at the resi-

dence during the entire incident, entered the house because

they believed they had been given consent, and not because

HUFF v. CITY OF BURBANK 631

of any perceived exigency. Nor did Ryburn or Zepeda com-

municate any exigency to Munoz and Roberts. When the offi-

cers entered the Huff home, they committed a Fourth

Amendment violation. The district court was incorrect in find-

ing that exigent circumstances existed.

Finally, we note that although the officers do not specifi-

cally argue that their warrantless entry was justified by emer-

gency circumstances, we would reject such a claim. The

emergency doctrine applies when police officers reasonably

believe entry is necessary to “protect or preserve life or avoid

serious injury.” Mincey v. Arizona, 437 U.S. 385, 392 (1978).

This exception may appear to fit better the facts of this case

because the officers need not have probable cause to show a

crime has been or is about to be committed; instead, “[t]here

must be some reasonable basis, approximating probable

cause, to associate the emergency with the area or place to be

searched.” Hopkins, 573 F.3d at 764 n.5. Here, however, there

was no “objectively reasonable basis for concluding that there

[wa]s an immediate need to protect others or themselves from

serious harm.” United States v. Snipe, 515 F.3d 947, 951-52

(9th Cir. 2008). Maria merely asserted her right to end her

conversation with the officers and returned to her home.

Therefore, as discussed above, any belief that the officers or

other family members were in serious, imminent harm would

have been objectively unreasonable.

2. Qualified Immunity

Qualified immunity can shield government officials from

individual civil liability where their conduct “does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.” Harlow v. Fitzger-

ald, 457 U.S. 800, 818 (1982). We use a two-step analysis to

determine whether the facts show that: (1) the conduct of the

officers violated a constitutional right; and (2) the right that

was violated was clearly established at the time of the viola-

tion. Saucier v. Katz, 533 U.S. 194, 201 (2001); Hopkins, 573

632 HUFF v. CITY OF BURBANK

F. 3d at 762. Here, it has been established that the Officer

Defendants committed a Fourth Amendment violation

because there were no exigent circumstances justifying their

entry into the Huff home.

a. Clearly Established Law

[8] Next we must determine whether the right which the

Officer Defendants violated was clearly established at the

time of the violation. This inquiry, whether the law was

clearly established, is a pure question of law for the court to

decide. Romero v. Kitsap Cnty., 931 F.2d 624, 628 (9th Cir.

1991); see also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

If the officers violated such a right, but it was not clearly

established, then they are entitled to immunity. Hopkins, 573

F.3d at 762. A right is clearly established if a reasonable offi-

cer would know that his conduct was unlawful in the situation

he confronted. Headwaters Forest Defense v. Cnty. of Hum-

boldt, 276 F.3d 1125, 1129 (9th Cir. 2002); see also Anderson

v. Creighton, 483 U.S. 635, 641 (1987).

[9] We have explicitly stated that “with respect to the lack

of probable cause and the lack of exigent circumstances —

the absence of either of which would preclude the officers’

reliance on the exigency exception — the law as to both was

clearly established in 2003.” Hopkins, 573 F.3d at 772. The

dissent relies on Brigham City v. Stuart, 547 U.S. 398 (2006),

to argue that it was not clearly established law that a warrant-

less entry predicated on a perceived emergency but lacking

probable cause violates the Fourth Amendment. In so doing,

the dissent mistakenly conflates the emergency doctrine,

which requires an objectively reasonable basis, with the exi-

gent circumstances doctrine, which requires probable cause as

well as a reasonable belief that entry is necessary. The Ninth

Circuit has not merged these two doctrines; in fact, we have

been explicit in recognizing their contours and their autono-

mous applications.5 See, e.g., Hopkins, 573 F.3d at 763

5

The dissent implies that we should abandon our long-standing rule dis-

tinguishing between the emergency and exigency exceptions to the war-

HUFF v. CITY OF BURBANK 633

(explaining that the emergency doctrine derives from the

police officers’ “community caretaking function” whereas the

exigent circumstances doctrine derives from the police offi-

cers’ “investigatory function”). In Brigham City, the Supreme

Court confirmed the standard for whether police may enter a

home without a warrant in accordance with the emergency

doctrine: Officers must have “an objectively reasonable basis”

to conclude that an emergency is occurring and immediate

action is necessary to protect themselves or others from seri-

ous, imminent harm. Brigham City, 547 U.S. at 400; see also

Michigan v. Fisher, 130 S. Ct. 546, 548 (2009) (per curiam)

(characterizing Brigham City as an “emergency aid excep-

tion” case). As discussed above, this exception does not apply

to the present case. Brigham City does not, as the dissent sug-

gests, disturb the requirement that probable cause is necessary

when a warrantless entry is based on exigent circumstances.

This was clearly established law when the officers entered the

Huff residence, and it is the law that continues to protect the

privacy and sanctity of the home today. See United States v.

rant requirement in favor of approaches adopted by the Sixth and Tenth

Circuits, which the dissent reads as dispensing with probable cause in

favor of the objectively reasonable basis standard. See United States v.

Huffman, 461 F.3d 777 (6th Cir. 2006); Armijo v. Peterson, 601 F.3d 1065

(10th Cir. 2010). In both of these cases, the courts expanded the scope of

Brigham City over vigorous dissents. Neither case contains jurisprudential

explanations or prudential concerns sufficient to justify why it is now nec-

essary for us to merge these two distinct doctrines and dispense with the

firmly-established rule announced by the Supreme Court and followed by

every other circuit that the Fourth Amendment requires both probable

cause and exigent circumstances, including safety, for a warrantless entry

into the home. See Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (per

curiam); Estate of Bennett v. Wainwright, 548 F.3d 155, 169 (1st Cir.

2008); Loria v. Gorman, 306 F.3d 1271, 1283 (2d Cir. 2002); Estate of

Smith v. Marasco, 318 F.3d 497, 518 (3d Cir. 2003); United States v.

Moses, 540 F.3d 263, 269-70 (4th Cir. 2008); United States v. Newman,

472 F.3d 233, 236 (5th Cir. 2006); United States v. Venters, 539 F.3d 801,

806-07 (7th Cir. 2008); United States v. Clarke, 564 F.3d 949, 959 (8th

Cir. 2009); Bates v. Harvey, 518 F.3d 1233, 1245 (11th Cir. 2008); In re

Sealed Case 96-3167, 153 F.3d 759, 764 (D.C. Cir. 1998).

634 HUFF v. CITY OF BURBANK

Struckman, 603 F.3d 731, 739 (9th Cir. 2010). Accordingly,

when we consider the actions of the officers “in the light of

pre-existing law[,] the unlawfulness [is] apparent.” Anderson,

483 U.S. at 640. The issue then becomes whether a reasonable

officer would have known the conduct of Ryburn, Zepeda,

Roberts, and Munoz in this situation was unlawful.

b. Objective Reasonableness

The reasonableness inquiry is objective, evaluating

“whether the officers’ actions are ‘objectively reasonable’ in

light of the facts and circumstances confronting them, without

regard to their underlying intent or motivation.” Graham v.

Connor, 490 U.S. 386, 397 (1989).

i. Roberts and Munoz

[10] The district court found that Roberts and Munoz

entered the Huff residence because they believed they had

been given consent. Though Roberts and Munoz were mis-

taken in their beliefs, their actions were reasonable under the

circumstances. They were not party to the conversations

occurring between Ryburn, Zepeda, Maria, and Vincent. They

entered the Huff home only after their colleagues Ryburn and

Zepeda. No one communicated to them the basis for entry or

indicated to them that they should remain outside. Under

those conditions, a reasonable officer may have believed,

though mistakenly, that he and his fellow officials had been

given consent to enter the home. Roberts and Munoz are enti-

tled to qualified immunity for their warrantless entry into the

Huff residence in violation of the Fourth Amendment.

The Huffs argue that even if there were exigent circum-

stances to justify entry into their home, the officers violated

their Fourth Amendment rights by remaining in their home

once they realized that no exigent circumstances existed. But

“officers [are] not required to periodically reassess whether

the exigency persisted throughout” the duration of a search.

HUFF v. CITY OF BURBANK 635

Fisher, 558 F.3d at 1077. Here, Roberts and Munoz’s remain-

ing in the home for five to ten minutes “was merely a continu-

ation of the initial entry,” and we therefore decline to hold

them personally liable for failing to leave. Id. (quoting United

States v. Echegoyen, 799 F.2d 1271, 1280 (9th Cir. 1986)).

ii. Ryburn and Zepeda

[11] The district court found that Zepeda entered the Huff

home because of “officer safety concerns” and that Ryburn

faced “a number of factors” that led to safety concerns. (ER

79:3-5, 81:4-5.) Both Zepeda and Ryburn knew that they were

at the Huff house to investigate alleged threats that had been

made by Vincent. They were aware that no crime had been

committed at the Huff home. Both Zepeda and Ryburn knew

that no crime was in progress at the Huff home. Both Zepeda

and Ryburn were aware that they did not have probable cause

to stop or detain Maria or Vincent. Both Zepeda and Ryburn

knew that they had not been given consent to enter the Huff

residence. Neither Zepeda nor Ryburn knew a gun to be pres-

ent at the Huff home, ever saw a gun, or was ever informed

of the presence of a gun. A reasonable officer confronted with

this situation may have been frustrated by having a parent

refuse them entry, but would not have mistaken such a refusal

or reluctance to answer questions as exigent circumstances.

Thus, Ryburn and Zepeda are not entitled to qualified immu-

nity for their warrantless entry into the Huff residence in vio-

lation of the Fourth Amendment.

III. CONCLUSION

For the foregoing reasons, we AFFIRM in part and

REVERSE in part the district court’s judgment and

REMAND the case.6

6

Each party shall bear its own costs on appeal.

636 HUFF v. CITY OF BURBANK

Rawlinson, Circuit Judge, concurring in part, and dissenting

in part:

I would pose the issue in this case as whether it was clearly

established law that a warrantless entry predicated on a per-

ceived emergency violates the Fourth Amendment despite the

lack of probable cause. In my view, that point of law was not

clearly established, and should result in our affirming the

grant of qualified immunity to all the officers who are defen-

dants in this case.

Unquestionably, the discrete incident that precipitated the

entry in this case was Mrs. Huff’s response to the question

regarding whether there were guns in the house. The majority

recites a sanitized account of this event, stating that Mrs. Huff

“went into the house” and “testified that she responded that

she would go get her husband.” Majority Opinion, pp. 621-22.

However, the district court’s findings of fact, which the

majority concedes must be credited, see Majority Opinion, p.

624, differs markedly from the majority’s rendition. Indeed,

the district court found that when asked whether there were

guns in the house, rather than responding, Mrs. Huff turned

and ran into the house. Mrs. Huff’s precipitous departure

understandably prompted safety concerns. Sergeant Rayburn

testified as follows regarding his actions after Mrs. Huff

declined the suggestion to go inside the home:

Q. So when she said “no,” did you decided [sic] to

start questioning her as if you were inside the

house?

A. Yes. And that’s why I asked if there was any

weapons in the house.

Q. In targeted violence situations, does that ques-

tion have a particular meaning to you?

A. Absolutely because of, again, the threat that he

was going to blow up or shoot up the school. I

HUFF v. CITY OF BURBANK 637

wanted to make sure neither one of them could

access any weapons from inside the house, and

that’s where they normally get the weapons

from is from either their parents or relatives or

friends.

Q. Did Mrs. Huff say “no” to your question about

whether there were guns in the house?

A. She didn’t say anything at all. She just turned

around and went into the house.

Q. Did she say she was going to get her husband?

A. No.

Q. When Mrs. Huff turned and went into the

house, were you concerned?

A. Absolutely.

Q. Were you scared?

A. I was scared because I didn’t know what was in

that house and, again, I’ve seen too many offi-

cers killed in shootings. I did not want one of us

to be injured. So I went in and followed her in

the house.

Q. Did you go into the house to search for guns?

A. No.

Q. Why did you go into the house?

A. Because I didn’t want her to access a weapon or

Vincent Huff accessing a weapon.

638 HUFF v. CITY OF BURBANK

Q. Why didn’t you just grab her? Stop her?

A. It all happened so quick. As soon as I asked her

about the weapons, she turned and ran into the

house. I didn’t have a chance to. Caught me by

surprise.

In my view, the cases cited by the majority that address cir-

cumstances where law enforcement has targeted a person or

an item for search or seizure are not the appropriate guide-

posts for our analysis. I would look instead to those cases that

specifically address the scenario where officer safety concerns

prompted the entry.

In Brigham City v. Stuart, 547 U.S. 398 (2006), the United

States Supreme Court was called upon to “consider whether

police may enter a home without a warrant when they have

an objectively reasonable basis for believing that an occupant

is seriously injured or imminently threatened with such inju-

ry.” Id. at 400. The Supreme Court “conclude[d] that they

may.” Id.

In its analysis, the Supreme Court focused on “the appro-

priate Fourth Amendment standard governing warrantless

entry by law enforcement in an emergency situation.” Id. at

402 (citations omitted). Without mentioning a probable cause

requirement, the Supreme Court upheld the warrantless entry

because “the officers had an objectively reasonable basis for

believing “that an emergency situation existed.” Id. at 406.

The Supreme Court’s analysis in Brigham City is consistent

with its earlier pronouncement in Georgia v. Randolph, 547

U.S. 103 (2006). Randolph involved the warrantless search of

a shared dwelling over the express refusal of a co-resident of

the dwelling. See id. at 106. Although the Supreme Court

determined that there was no valid consent by Randolph, and

the results of the search were “unreasonable and invalid as to

him,” id., in responding to the dissent’s argument that the rul-

HUFF v. CITY OF BURBANK 639

ing would “shield[ ] spousal abusers and other violent co-

tenants,” id. at 117 (citation omitted), the majority observed

that:

[I]t would be silly to suggest that the police would

commit a tort by entering, say, to give a complaining

tenant the opportunity to collect belongings and get

out safely, or to determine whether violence (or

threat of violence) has just occurred or is about to (or

soon will) occur . . . Thus, the question whether the

police might lawfully enter over objection in order to

provide any protection that might be reasonable is

easily answered yes . . .

Id. at 118 (citation omitted).

At least one other circuit had applied the analysis articu-

lated in Brigham City to uphold a warrantless search as of

2007, when this challenged entry occurred. In United States

v. Huffman, 461 F.3d 777, 780 (6th Cir. 2006), there was a

report of shots fired. Police were dispatched to the scene, and

observed bullet holes and glass. See id. The officers did not

observe any blood or signs of injury. See id. After there was

no response to the officers’ knock and announcement of their

presence, the officers entered the residence. See id. Huffman

was asleep in a chair with a fully loaded assault rifle on a

table in front of him. See id. Huffman was arrested and

charged with firearm violations. See id. Huffman’s motion to

suppress on the basis of a Fourth Amendment violation was

denied. See id. at 781. The district court concluded that the

facts “were sufficient to establish exigent circumstances justi-

fying entry into the residence without a warrant.” Id.

In discussing the exigent circumstances exception to the

warrant requirement, the Sixth Circuit cited Brigham for the

proposition that there are “four situations that may give rise

to exigent circumstances: 1) pursuit of a fleeing felon, 2)

imminent destruction of evidence, 3) the need to prevent a

640 HUFF v. CITY OF BURBANK

suspect’s escape, and 4) a risk of danger to the police or oth-

ers.” Id. at 782 (citation omitted) (emphasis added). The Sixth

Circuit explained that “to satisfy the exigent circumstances

exception [the government] must show that there was a risk

of serious injury posed to the officers or others that required

swift action. Id. (citation omitted). The Sixth Circuit, as was

the case in Brigham City, did not mention probable cause.

Although the more dated cases cited by the majority import

a probable cause requirement into the exigent circumstances

analysis, Brigham City, Huffman and other more recent cases

discussing exigent circumstances do not. See Michigan v.

Fisher, 130 S. Ct. 546 (2009) (describing the Brigham City

holding as embodying the “emergency aid exception,” requir-

ing “only an objectively reasonable basis for believing that a

person within the house is in need of immediate aid[.]” Id. at

548 (citations, alteration and internal quotation marks omit-

ted); see also United States v. Snipe, 515 F.3d 947 (9th Cir.

2008) (“Considering the totality of the circumstances, law

enforcement must have an objectively reasonable basis for

concluding that there is an immediate need to protect others

or themselves from serious harm.” Id. at 951-52 (emphasis

added); Armijo v. Peterson, 601 F.3d 1065, 1071 (10th Cir.

2010) (“[T]he exigent circumstances exception permits war-

rantless home entries when officers reasonably believe that

some actor or object in a house may immediately cause harm

to persons or property not in or near the house.” (Emphasis in

the original).

In any event, as of 2007 when the events in this case

occurred, at a minimum it was unclear whether a warrantless

entry into a home by police officers who feared for their

safety violated the Fourth Amendment. Under the rationale

articulated in Brigham City, Randolph and Huffman, a police

officer could have reasonably believed that he was justified in

making a warrantless entry to ensure that no one inside the

house had a gun after Mrs. Huff ran into the house without

answering the question of whether anyone had a weapon. See,

HUFF v. CITY OF BURBANK 641

e.g., United States v. Paopao, 469 F.3d 760, 766 (9th Cir.

2006), as amended (“Depending on the circumstances, the

exigencies of a situation may make it reasonable for officers

to enter a home without a warrant in order to conduct a pro-

tective sweep.”) (quoting United States v. Cavely, 318 F.3d

987, 995-96 (10th Cir. 2003).) Accordingly, I conclude that it

was not clearly established that the actions taken by Sergeant

Ryburn and Officer Zepeda violated the Fourth Amendment.

As a result, I would affirm the district court’s decision grant-

ing qualified immunity to all four officers involved in the

incident.

I, therefore, concur in that portion of the opinion holding

that Officers Roberts and Munoz were entitled to qualified

immunity. I respectfully dissent from that portion of the opin-

ion holding that Sergeant Ryburn and Officer Zepeda were

not entitled to qualified immunity.