The opinion
FILED
NOT FOR PUBLICATION APR 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MACARIO BELEN DAGDAGAN, No. 10-15231
Plaintiff - Appellee, D.C. No. 2:08-cv-00922-GEB-
GGH
v.
JASON WENTZ, Vallejo Officer MEMORANDUM *
(ID#524); JOHN BOYD, Vallejo Officer
(ID#589),
Defendants - Appellants,
and
CITY OF VALLEJO; JOHN MELVILLE,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted April 11, 2011 **
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: NOONAN and N.R. SMITH, Circuit Judges, and COLLINS, District
Judge.***
Macario Belen Dagdagan (“Dagdagan”) sued the City of Vallejo, California
and three of its police officers in this §1983 civil rights action. Two of the officers,
Jason Wentz (“Wentz”) and John Boyd (“Boyd”), sought qualified immunity.
Indulgently taking the facts as offered by Wentz and Boyd, the district court denied
qualified immunity. The officers appeal.
Viewing the facts in the light most favorable to the nonmoving party, we
observe that the officers were investigating an assault that allegedly occurred
approximately two hours earlier. See La Londe v. County of Riverside, 204 F.3d
947, 953-54 (9th Cir. 2000). Having interviewed the victim at her home, the
officers proceeded to the apartment of the alleged assailant, Dagdagan. Without
attempting to secure a warrant, the officers entered and found Dagdagan in bed,
apparently asleep. They roused him, tased him and arrested him, causing him
severe bodily injury in the process of arrest.
Absent a showing of exigency or emergency, a warrant is required to search
a home or arrest a person within a home. See Hopkins v. Bonvicino, 573 F.3d 752,
***
The Honorable Raner C. Collins, District Judge for the U.S. District
Court for Arizona, Tucson, sitting by designation.
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763, 773 (9th Cir. 2009). The emergency exception to the warrant requirement
applies where officers believe it is necessary to enter a home “to render emergency
assistance to an injured occupant or to protect an occupant from imminent injury.”
Brigham City v. Stuart, 547 U.S. 398, 403 (2006). The exigency exception applies
where the officers have “probable cause to believe a crime has been or is being
committed and a reasonable belief that their entry is ‘necessary to prevent . . . the
destruction of relevant evidence, the escape of the suspect, or some other
consequence improperly frustrating legitimate law enforcement efforts.’” Hopkins,
573 F.3d at 763 (quoting United States v. McConney, 728 F.2d 1195, 1199 (9th
Cir. 1984) (en banc)).
By the time the officers arrived at Dagdagan’s home, any emergency or
exigency that might have justified their warrantless entry had long since passed.
See United States v. Johnson, 256 F.3d 895, 907 (9th Cir. 2001) (“[T]he critical
time for determining whether any exigency exists is the moment the officer makes
the warrantless entry.” ); cf. Brigham City, 547 U.S. at 1949 (finding warrantless
entry justified to provide assistance where officers witnessed, through a window, a
young man striking an adult in the face, “sending the adult to the sink spitting
blood”). Before arriving at Dagdagan’s residence, the officers knew that Kearney,
the only known victim of the alleged assault, was at her own home. Officers
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Wentz and Boyd had no reason to believe that Dagdagan was injured and in need
of assistance, nor that anyone other than Dagdagan was present in Dagdagan’s
apartment. Having unlawfully entered Dagdagan’s home and found him in bed,
apparently asleep, no reasonable officer could then conclude that there was
probable cause to arrest Dagdagan for a violation of California Penal code § 148.
See Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (observing that the
lawfulness of the officers’ conduct at the time of the arrest is an essential element
of a § 148 violation). No emergency or exigency justified the officers’ flagrant
invasions of clearly established constitutional rights.
AFFIRMED.
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