CA9: Misd possession of firearm on one’s own porch doesn’t justify warrantless entry into the home

There was a fair probability that defendant seen with a handgun on his porch, not a public place under state law, violated state law, but that doesn’t give any justification to surround his house and order him out at gunpoint which violated Payton. It was at worst a misdemeanor. United States v. Nora, 2014 U.S. App. LEXIS 16677 (9th Cir. August 28, 2014):

Nora next contends that, even if the officers had probable cause to arrest him, they arrested him in violation of Payton v. New York, 445 U.S. 573 (1980). The Court held in Payton that the Fourth Amendment forbids arresting a suspect inside his home unless the police first obtain an arrest warrant or an exception to the warrant requirement applies. Id. at 590. That rule is designed to protect “the privacy and the sanctity of the home,” id. at 588, and stems from “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.” Id. at 601.

The government properly concedes that the police arrested Nora “inside” his home for purposes of the Payton rule. Although officers physically took Nora into custody outside his home in the front yard, they accomplished that feat only by surrounding his house and ordering him to come out at gunpoint. We’ve held that forcing a suspect to exit his home in those circumstances constitutes an in-home arrest under Payton. See, e.g., Fisher v. City of San Jose, 558 F.3d 1069, 1074-75 (9th Cir. 2009) (en banc); United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir. 1985). Since the officers didn’t obtain an arrest warrant, Nora’s arrest violated the Fourth Amendment unless an exception to the warrant requirement applies.

The government argues, and the district court found, that the “exigent circumstances” exception to the warrant requirement applies. That exception permits a warrantless in-home arrest in certain narrowly defined circumstances. See United States v. Struckman, 603 F.3d 731, 743 (9th Cir. 2010). One such circumstance is where the government can show that the delay necessary to secure a warrant would create “a substantial risk of harm to the persons involved or to the law enforcement process.” Al-Azzawy, 784 F.2d at 894 (internal quotation marks omitted).

Nora didn’t present the kind of immediate threat to the safety of officers or others necessary to justify a disregard of the warrant requirement. Our decision in Al-Azzawy provides a useful contrast. In that case the defendant refused commands to exit his home a short time after he threatened to shoot his neighbor, to light his neighbor’s trailer on fire, and to “blow up” the entire trailer park in which the two lived if the neighbor bothered the defendant’s family again. Id. at 891, 894. Officers were told that the defendant had also threatened the neighbor with a pistol the day before and had been seen in possession of hand grenades and automatic weapons a few days earlier. Id. at 891. We held that exigent circumstances justified the defendant’s warrantless in-home arrest because the officers reasonably believed that he “possessed illegal explosives and was in an agitated and violent state.” Id. at 894. Even on those facts, we said the exigency question was close. Id.

The facts of this case are decidedly less compelling from an exigency standpoint than those in Al-Azzawy. True, the officers saw Nora in possession of a handgun. But Nora never aimed the weapon at the officers or anyone else, and the officers had no evidence that he had used or threatened to use it. Cf. Fisher, 558 F.3d at 1072-73 (suspect aimed rifle at officers and threatened to shoot). The officers had no reason to believe that illegal weapons such as explosives were present inside Nora’s home, or that anyone else to whom Nora may have posed a danger was inside. Nor had Nora given any other indication that he was in “an agitated and violent state.” Al-Azzawy, 784 F.2d at 894. Finally, the officers had no reason to believe Nora might pose a danger to the public by attempting to flee, since they had the house completely surrounded and could monitor all exit points. See United States v. Gooch, 6 F.3d 673, 679 (9th Cir. 1993) (defendant resting in closed tent posed no present danger to officers or other campers, despite having discharged firearm in crowded campground hours earlier).

Our conclusion that no exigency existed is buttressed by the fact that the offense involved here was a misdemeanor. At the time the officers ordered Nora to exit his home, they had probable cause to believe he had committed only a misdemeanor violation of California Penal Code § 25850(a).2 The Supreme Court has said we should be hesitant to find exigent circumstances “when the underlying offense for which there is probable cause to arrest is relatively minor.” Welsh v. Wisconsin, 466 U.S. 740, 750 (1984). Reflecting that hesitancy, we’ve held that “an exigency related to a misdemeanor will seldom, if ever, justify a warrantless entry into the home.” Hopkins v. Bonvicino, 573 F.3d 752, 769 (9th Cir. 2009) (internal quotation marks omitted). In our view, this isn’t one of the rare cases in which exigent circumstances can be found notwithstanding the relatively minor nature of the offense involved.