CA9: No articulable facts could be given for exigent based entry into apt; “lack of information is the opposite of articulable facts.”

There was no objectively reasonable basis for an emergency entry into defendant’s apartment because the police said that somebody might need immediate assistance. Defendant grabbed his waistband when running, but no gun was ever seen. “[L]ack of information is the opposite of articulable facts.” By the time police got to defendant’s apartment, he’d already been arrested. No reason for the entry could be given. United States v. Garcia, 2018 U.S. App. LEXIS 25978 (9th Cir. Sep. 13, 2018):

The officers here lacked an objectively reasonable basis to believe that there was someone inside of the residence in need of immediate assistance. The Government’s arguments regarding what the officers did not know—including Nevarez’s connection to the apartment, whether he was armed, and what he planned to do inside—cannot justify entry, as lack of information is the opposite of articulable facts. See Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154, 1164 (9th Cir. 2014). And what the officers did know—that it was a high-crime area and that individuals attempting to avoid arrest can sometimes be dangerous—consisted in large part of the type of generalizations that cannot form the basis of a particularized belief. See United States v. Granville, 222 F.3d 1214, 1219 (9th Cir. 2000); United States v. Becker, 23 F.3d 1537, 1541 (9th Cir. 1994); cf. United States v. Bynum, 362 F.3d 574, 580-81 (9th Cir. 2004).

With respect to the fear that Nevarez was armed, grabbing one’s waistband when one begins to run—a gesture also common when the individual is wearing baggy pants—is much less suggestive of actual gun possession than the facts confronting officers in cases where we have upheld the emergency exception in part on this basis. See United States v. Black, 482 F.3d 1035, 1039 (9th Cir. 2007) (defendant’s ex-girlfriend called police, identified herself, and told them that defendant had a gun). Further, even if the officers had seen a gun, Nevarez took no actions indicating that he was a danger to others or that he intended to use it. See United States v. Nora, 765 F.3d 1049, 1054-55 (9th Cir. 2014).

More significantly, any potential danger associated with Nevarez’s presence inside the house dissipated when Nevarez was taken into custody outside of the house, prior to the officers’ entry. See United States v. Gooch, 6 F.3d 673, 680 (9th Cir. 1993); cf. United States v. Reyes-Bosque, 596 F.3d 1017, 1030 (9th Cir. 2010). Indeed, it is unclear what emergency the officers could have envisioned, where—unlike the cases cited by the Government, see Snipe, 515 F.3d 947; Black, 482 F.3d 1035—they received no call requesting emergency assistance, and where the only person arousing their suspicions was arrested outside of the residence prior to their entry.

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