Murdock v. Stout

54 F.3d 1437, 1995 WL 239366

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 1995
• Docket: Nos. 93-56248, 93-56643
• Status: Published

Opinions

Opinion by Judge BEEZER; dissent by Judge NOONAN.

BEEZER, Circuit Judge:

We consider whether exigent circumstances justified the warrantless entry and search of a house along with the brief seizure of an occupant by police officers investigating a suspected burglary.

Clyde Murdock, Linda Murdock, and Jeffrey Murdock (collectively “Murdock”) appeal the district court’s grant of summary judgment in favor of Ed Stout, the City of Fonta-na, California, and Fontana Police Officers Mark Jacobson, Dave Walby and Darren Robins (collectively “Fontana”) in Murdock’s 42 U.S.C. § 1988 action alleging a violation of his rights under the Fourth Amendment. The district court concluded that the police officers acted reasonably when they entered Murdock’s house without a warrant and briefly detained him while investigating a possible burglary. We have jurisdiction, 28 U.S.C. § 1291, and we affirm.

I

The facts are undisputed. On March 23, 1992, Robert Keck called the Fontana Police Department to report what he believed was suspicious activity in his neighborhood. Keck informed the Fontana police dispatcher that a passerby had told him that he saw a young person run from a neighbor’s house across the street, enter an automobile and drive away. The house, identified by Keck as 13767 Lighthouse Court, was, according to the passerby, dark. The dispatcher, believing that a “possible burglary or other crime had occurred” contacted three police officers by radio.¹

Fontana Police Officers Jacobson, Walby, and Robins arrived at the house to investigate shortly before 8:30 p.m. The officers observed that the windows were secure and the garage door was closed. Officers Jacobson and Robins proceeded to the rear of the house, where they noticed a sliding door open approximately 8 to 10 inches. Inside, a television was on “at a low setting” and the lights were “dim.” Officer Jacobson twice announced his presence by shouting, “Fonta-na Police. Anybody home?” The announcement was sufficiently loud for Officer Walby to hear it across the street. No one responded. The telephone then rang several times. No one answered, and an answering machine was activated.

At this point, Officers Jacobson and Robins entered the house through the open door. Using their flashlights, and with their guns drawn, they searched the living room and kitchen. The officers discovered several cans of beer on a table near the television. The officers then entered the bedroom. They observed a man, later identified as Clyde Murdock, lying on the bed partially covered by some type of blanket. Officer Jacobson announced that he was a police officer. Because the man’s hands were hidden under the blanket, Officer Jacobson immediately demanded that the man show his hands. Murdock began yelling at the officers. Officer Jacobson eventually removed the blanket, discovering that Murdock was fully clothed and was wearing shoes.

Officer Robins then let Officer Walby in the house. As Murdock had yet to be identified, Walby and Robins continued to search the house for “possible suspects or other persons.” They found nothing. While this additional search was being performed, Mur-dock refused to answer Officer Jacobson’s questions regarding his name and address.

When Walby and Robins returned to the bedroom, the officers conducted a pat down search of Murdock.² Murdock was then identified by his driver’s license. He continued to act belligerently toward the officers and demanded their badge numbers. The officers provided Murdock with their badge numbers and left the Murdock residence, stopping at Keek’s house to inform him that no burglary or other crime had occurred.

Murdock later called Fontana Police Headquarters to complain about the incident. A police sergeant explained the reason for the intrusion. Murdock did not request an investigation.

Murdock filed a section 1983 action seeking money damages of 20 million dollars. Both parties moved for summary judgment. The district court granted Fontana’s motion, concluding that the officers acted reasonably when they conducted a warrantless search of the house and briefly seized Murdock. Mur-dock appeals.

Murdock later sought sanctions pursuant to Federal Rule of Civil Procedure 11 against Fontana because it initially included a claim for photocopying expenses in its bill of costs. Fontana withdrew its request after Murdock objected to the claim. The district court declined to impose sanctions. Murdock also appeals this decision.

II

We review de novo a district court’s determination of the validity of a warrantless entry into a residence. United States v. Lai 944 F.2d 1434, 1441 (9th Cir.1991), cert. denied, 502 U.S. 1062, 112 S.Ct. 947, 117 L.Ed.2d 116 (1992). We also review de novo a grant of summary judgment. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994).

The Fourth Amendment to the United States Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” A warrant-less search or seizure carried out in a private residence is presumptively unreasonable. Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S.Ct. 2091, 2096-97, 80 L.Ed.2d 732 (1984); Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 2042-43, 29 L.Ed.2d 564 (1971). Indeed, the protection of individuals from unreasonable government intrusion into their houses remains at the very core of the Fourth Amendment. Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980); see also United States v. United States Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972) (physical entry of the home is “chief evil against which the wording of the Fourth Amendment is directed”).

Police entry into a house without a warrant is not, however, always unreasonable. Instead, a number of purportedly “well-delineated” exceptions permit law enforcement officers to conduct constitutionally reasonable searches and seizures without a warrant. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Because a warrantless search is presumed to be unreasonable, Fontana bears the burden of establishing the applicability of any exception.

Here, Fontana invokes the “exigent circumstances exception” to the search warrant requirement. The exigency exception, unlike other more discrete counterparts such as consent searches or searches incident to arrest, is in fact more of a residual group of factual situations that do not fit into other established exceptions. See Wayne R. La-Fave, Search and Seizure: A Treatise on the Fourth Amendment §§ 6.5-6.6 (2d ed. 1987). The critical commonality shared by exigency cases is the need for quick action in an emergency situation. United States v. Warner, 843 F.2d 401, 403 (9th Cir.1988) (noting that presence of exigent circumstances nec-essadly implies insufficient time to obtain a warrant).

We have defined exigent circumstances as:

“those circumstances that would cause a reasonable person to believe that entry ... was 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.”

LaI, 944 F.2d at 1442 (quoting United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)). We evaluate the reasonableness of a warrantless entry in view of the totality of the circumstances from the perspective of the police officers at the time of the entry. United States v. Lindsey, 877 F.2d 777, 781 (9th Cir.1989).

Although exigent circumstances relieve the police officer of the obligation of obtaining a warrant, they do not relieve an officer of the need to have probable cause to enter the house. Lai, 944 F.2d at 1441; United States v. Valles-Valencia, 811 F.2d 1232, 1236 (9th Cir.), amended, 823 F.2d 381 (1987). One commentator has noted, however, that an analysis of probable cause in exigency eases “must be applied by reference to the circumstances then confronting the officer, including the need for prompt assessment of sometimes ambiguous information concerning potentially serious consequences.” LaFave § 6.6(a), at 698.³

To determine if the officers had probable cause to enter Murdock’s house, we examine the totality of the circumstances known to the officers at the time they entered. Lai, 944 F.2d at 1441 (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). Probable cause requires only a fair probability or substantial chance of criminal activity, not an actual showing that such activity occurred. Gates, 462 U.S. at 244, 103 S.Ct. at 2335.

When the three Fontana police officers arrived at the house, they knew that there had been a report of suspicious activity indicating a possible burglary or other crime had been or was being committed. Upon moving to the rear of the house, the officers discovered an open door. Based on these facts, we doubt that there would be sufficient probable cause to support entry. We have upheld, as have other courts, exigent circumstance searches based on officers finding physical evidence of a burglary, such as a broken window or forced lock. See Valles-Valencia, 811 F.2d at 1236 (officers observed signs that front window was pried open); United States v. Johnson, 9 F.3d 506, 509-10 (6th Cir.1993) (officers discovered broken window and people inside house who had no identification or keys), cert. denied, — U.S. —, 114 S.Ct. 2690, 129 L.Ed.2d 821 (1994); United States v. Dart, 747 F.2d 263, 267 (4th Cir.1984) (officers observed locks sawed off and door forced open); United States v. Estese, 479 F.2d 1273, 1274 (6th Cir.1973) (officers observed signs that apartment door had been pried open). In our judgment, the open door at Murdock’s house was itself not sufficient to satisfy the standards in these cases where physical signs of burglary were evident.

The police officers did not, however, enter the house based only on the open door and the neighbor’s report. They observed several indications that a resident was or should have been at the residence. The lights were on and a television was on, in addition to the door being open. The officers prudently attempted to make contact with the resident, no doubt to make sure the resident was safe in light of the officers’ concern that a burglary or other crime might have occurred. Officer Jacobson shouted twice, but received no answer, nor did any resident answer the telephone. These additional pieces of information, indicating that a resident should have been home, but was not responding, combined with the earlier report of suspicious activity and the presence of the open door tip the scales to supply the officers with probable cause to believe that some criminal activity had occurred or was occurring or that a resident in the house might have been in danger or injured.⁴

Given the presence of probable cause, we have little difficulty in concluding that exigent circumstances justified the immediate warrantless entry. The police officers had a reasonable belief that they had insufficient time to obtain a warrant. Lai, 944 F.2d at 1442. We agree with the Seventh Circuit that when police are responding to a possible crime, police judgments should be afforded an “extra degree of deference.” Reardon v. Wroan, 811 F.2d 1025, 1029 (7th Cir.1987); see also Johnson, 9 F.3d at 510.

Furthermore, only a mild exigency need be shown where entry can be accomplished, as here, without physical destruction of property. Lai, 944 F.2d at 1442; McConney, 728 F.2d at 1206. The facts known to the police officers indicated that a resident was not responding when the circumstances inside the house strongly suggested that a resident should have been present. This gave the officers reason to enter immediately without a warrant. Indeed, we are convinced that citizens in the community would have understandably viewed the officers’ actions as poor police work if they had left the scene or failed to investigate further at once.

Once the officers were inside the house they conducted a brief search of the house in order to locate any occupant. After they found Murdock, fully-clothed, wearing shoes, lying on a bed with his hands covered by a blanket, they tried to ascertain his identity. Murdock was uncooperative. The officers acted reasonably in briefly seizing Murdock and conducting a pat down search to look for weapons. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-81, 20 L.Ed.2d 889 (1968); cf. Maryland v. Buie, 494 U.S. 325, 333, 110 S.Ct. 1093, 1097, 108 L.Ed.2d 276 (1990) (extending Terry principles, under certain circumstances, to police-citizen confrontations in houses; in Buie, the context was a protective sweep while carrying out an arrest warrant); Michigan v. Summers, 452 U.S. 692, 702 n. 17, 705, 101 S.Ct. 2587, 2594 n. 17, 2595, 69 L.Ed.2d 340 (1981) (permitting brief seizure of occupant of premises while conducting search pursuant to a warrant, while leaving open possibility that exigent circumstances could justify comparable police conduct absent a warrant). After Murdock was identified, the officers immediately left the premises. The officers’ conduct never exceeded the scope of the exigency. See Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978) (warrantless search must be strictly circumscribed by the exigency that justified the initial entry).

We must also observe that there was no indication here that the officers were using their burglary investigation as a pretext for conducting a search for evidence in Mur-dock’s house. We would be more reluctant to accept officers’ claims of exigency if we found persuasive pretext evidence. See La-Fave § 6.6(b), at 708 (“courts must be especially vigilant in guarding against subterfuge, that is, a false reliance upon' the property protection rationale when the real purpose was to seek out evidence of a crime.”). Absent any evidence of pretext, we are more inclined to give deference to the judgments of police officers doing their job in the field.

Under different circumstances, the details judged to be suspicious by the officers would be innocuous, such as an open door, a dimly lit house, a television turned on, and an unanswered telephone. We, however, must examine the circumstances as they appeared to the police officers in light of their situation at the time. On the evening of March 23,1992, these circumstances gave the officers probable cause to believe that a crime might be ongoing or might have taken place and that someone might be in need of their help. We do not believe that the Fourth Amendment’s crucial protections of the sanctity of a person’s house are jeopardized by the police officers’ entering a house without a warrant under the limited and compelling circumstances of this case.

At oral argument, Murdock contended that our decision in United States v. Erickson, 991 F.2d 529 (9th Cir.1993), controls the outcome of this case in his favor. For several reasons, we disagree.

In Erickson, a police officer dispatched to investigate a suspected burglary arrived at a house in the afternoon and spoke to neighbors who had seen two men dragging a bag across the backyard. The officer walked into the backyard. He observed that no one appeared to be home, but did not knock on the door or make any other effort to contact a resident. The officer noticed an open basement window with a “black plastic sheet” covering the opening. The officer pulled back the sheet and spotted marijuana plants. The district court suppressed the evidence at a subsequent trial.

On appeal, the government did not argue that the search was justified by exigent circumstances. Instead, it argued that a police officer investigating a suspected burglary was performing a “community caretaking function” and was not subject to the probable cause requirement of the Fourth Amendment. The government argued, rather, that the officer need only act “reasonably under the circumstances.” Id. at 531. We rejected that argument, holding that the need for police officers to enter houses without a warrant while investigating suspected burglaries was adequately protected by “the exigent circumstances exception to the warrant requirement.” Id. at 533.

We specifically stated that “[t]he government does not challenge on appeal the district court’s finding that exigent circumstances did not exist in this case. We therefore do not pass upon that ruling.” Id. Thus, while we indicated that police officers must have probable cause and exigent circumstances to conduct a warrantless search, we did not state whether the facts in that case would have satisfied either of those requirements.

In any case, the facts in Erickson are distinguishable. In that ease, arriving in mid-afternoon, the police officer observed only an open window. The officer made no effort to contact a resident. He did not knock on the door. He did not observe any signs that a resident should have been inside. Here, the Fontana officers, while investigating a suspected burglary in the evening, noticed an open door and evidence that a resident should have been at home. The officers made the further step of trying to make contact with a resident. Only after their efforts failed did they enter the house. Clearly, the equation for the police officer in Erickson was much different than for the officers here. The police officers here had a fair probability that something was amiss inside the house and that a resident might be in need of assistance. The burglary report, the open door, and the disturbing lack of response from a resident when the situation in the house indicated the presence of a resident were far different than the facts known to the officer in Erickson.

In conclusion, the three Fontana police officers had probable cause and exigent circumstances sufficient to justify their war-rantless entry into Murdock’s house to investigate what might have been the scene of a burglary or other crime. The officers acted reasonably inside the house by looking for a possible victim or perpetrator, and securing the unknown fully-dressed occupant until his identity could be established. The fact that the officers’ suspicions were wrong does not alter our view that the circumstances known to them outside the house justified all of their actions.⁵

III

Murdock also argues that the district court erred in issuing a standing jury instruction order. The standing order required that the parties meet and confer at least 14 days before trial to address proposed jury instructions. We decline to address this issue as it is not yet ripe for review, and alternatively because Murdock has no standing to raise it. See St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.), cert. denied, 493 U.S. 993, 110 S.Ct. 541, 107 L.Ed.2d 539 (1989) (court should not review a claim that lacks ripeness); Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-63, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992) (plaintiff must demonstrate actual injury). Because the district court granted summary judgment in favor of Fontana, a trial was never held and Murdock was never required to comply with the standing order. Cf. Fikes v. Cleghorn, 47 F.3d 1011, 1015 (9th Cir.1995) (declining, on mootness grounds, to address whether standing order violated Fed.R.Civ.P. 83 because order was never enforced).

IV

Murdock argues that the district court erred in denying his motion to impose sanctions on Fontana’s counsel. He contends that Fontana submitted a bill of costs that included photocopying costs in the amount of $803.50, which Murdock argues are not recoverable. Murdock alleges that because Fontana knew the costs were not recoverable, it violated Federal Rule of Civil Procedure 11 by signing the bill of costs. We disagree.

Federal Rule of Civil Procedure 11 provides for sanctions if a party signs a pleading, motion, or other document that contains claims not “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law_” A district court’s decision to deny sanctions under Rule 11 is reviewed for abuse of discretion. Larez v. Holcomb, 16 F.3d 1513, 1521 (9th Cir.1994).

Murdock cites no authority demonstrating that the requested photocopying costs are not recoverable. Absent this showing, there is no evidence that Fontana’s request was improper. Indeed, 28 U.S.C. §§ 1920(3) and (4) indicate that expenses for some printing and photocopying are recoverable costs. See Dohmen-Ramirez v. Commodity Futures Trading Comm’n, 846 F.2d 1200, 1202 n. 1 (9th Cir.1988). In any case, when Murdock filed an objection to the photocopying costs, Fontana chose not to contest them based on its determination that the time needed to obtain documentary support for these costs exceeded the potential recovery. This decision is not unreasonable and certainly not sanctionable. We conclude that the district court did not abuse its discretion in denying sanctions.

AFFIRMED.

1 . The "Defendant's Contentions Regarding Facts,” which Murdock accepts as undisputed, include an unfortunate use of the passive voice at a critical place. After detailing the information that Keck told the dispatcher, the statement of facts continues, "[b]ecause the house was dark, it was believed that a possible burglary or other crime had occurred.” (emphasis added). We would have been delighted had the statement of facts indicated who believed that a burglary had occurred. Nevertheless, in our judgment, the only fair reading of this inartful sentence is that both Keck and the dispatcher believed that a burglary or other crime had occurred. This reading provides the only explanation of why the dispatcher called three police officers to investigate. This interpretation is also supported by transcripts of the conversations between Keck and the dispatcher and between the dispatcher and the police officers.

2 . Although Murdock states in his brief that “impermissible force” was used against him by the Fontana police officers and that the Fontana Police Department has a policy or practice of taking similar action, he does not cite to any evidence in the record supporting these allegations, nor does he offer any cases or argument in support of the claims. We decline to consider them.

3 . Some courts have recognized an exception, distinct from exigent circumstances, where there is an emergency involving imminent danger to life or property such as where an officer observes a fire in a house or hears a scream from a house. These scenarios invoke the so-called "emergency doctrine.” LaFave § 6.6(a), at 699; see New York v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607, cert. denied, 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191 (1976). In Mitchell, the New York Court of Appeals created a three part test to analyze emergency cases: (1) the police must have reasonable grounds to believe there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) the search must not be primarily motivated by intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. 39 N.Y.2d at 177-78, 383 N.Y.S.2d 246, 347 N.E.2d 607; see Michigan v. Davis, 442 Mich. 1, 497 N.W.2d 910, 918 (noting that police need riot have probable cause but rather a "reasonable belief” that a person is in need of immediate aid in order to enter a dwelling in an emergency), cert. denied, — U.S. —, 113 S.Ct. 2432, 124 L.Ed.2d 652 (1993); Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978) (officer can make warrantless entry when he or she "reasonably believe[s] that a person within is in need of immediate aid"). We have yet to consider whether this approach, or something comparable, should be adopted in a case such as this one where police officers are investigating a possible crime at the same time they might be rendering aid to a person in danger. Because we believe that probable cause and exigent circumstances were present here to justify an exigent circumstances search, we need not address whether this case, or a similar one, could qualify under an "emergency doctrine.”

4 . The cases cited by Murdock, United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir.1990) and Hutchinson v. Grant, 796 F.2d 288, 290 (9th Cir.1986), are inapposite. They involve probable cause to arrest a suspect, which is not at issue here. The Fontana police officers did not seek to make any arrests.

5 . Because we believe the officers’ conduct was reasonable, and thus affirm summary judgment, we need not address whether the officers had qualified immunity.