{"id":1541,"date":"2008-02-16T06:41:50","date_gmt":"2007-11-21T07:10:41","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-11-21T06:22:42","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1541","title":{"rendered":"9th Cir.: 12 hour standoff ultimately required a warrant under Payton<\/em> under these facts"},"content":{"rendered":"

The Ninth Circuit interprets Payton<\/em><\/a> to require that a 12 hour standoff that brought the SWAT team ultimately required a warrant. The initial surrounding of the house did not, but the length of the event required a warrant. All the plaintiff obtained, however, was nominal damages [and attorneys fees?]. Fisher v. City of San Jose<\/a>, 509 F.3d 952 (9th Cir. 2007) (2-1):<\/p>\n

We have found no case of this court that directly addresses whether police must obtain a warrant during a standoff such as occurred here between the police and a citizen if any initial exigency dissipates before further intrusions into the home to coerce the targeted individual to submit to arrest. We conclude, however, from our review of cases from other circuits involving police standoffs that the Payton<\/em> warrant requirement does not evaporate the moment officers surround a home with weapons and begin to take measures to induce an individual to leave his home. Rather, officers must obtain a warrant before any additional intrusions into the home if the initial exigency dissipates sufficiently to allow the police to obtain a warrant.FN9 The initial exigency can dissipate either because the danger posed by the targeted individual decreases or because, with the passage of time, resources become available that allow the police both to maintain safety and to obtain a warrant.<\/p>\n

9. We need not and do not decide whether a warrant would be required if armed police surrounded an individual in his home, but during the standoff made no further intrusions into the home for purposes of effecting an arrest. In this case, police clearly did intrude into the home after the initial seizure by throwing CS gas canisters into Fisher’s house.<\/p><\/blockquote>\n

. . .<\/p>\n

As should be evident, the dissent’s suggestion, post at 15073, that we are requiring a retroactive warrant is simply incorrect. Although a seizure is initially accomplished by surrounding a home, the police in such instances may–as here–take additional steps that intrude further into the home, and do not accomplish the formal arrest until the individual surrenders. To view this entire sequence of events as a single police decision made at the outset is both to indulge in a fiction and severely to undermine the warrant requirement. So, for example, had Fisher refused to come out and had the police therefore decided forcibly to enter Fisher’s home at 2:30 p.m., that decision and action could not reasonably be viewed as outside the warrant requirement on the ground that Fisher had already been seized at home earlier.<\/p>\n

. . .<\/p>\n

We do not disagree that Fisher was seized when police surrounded his home and stationed a sharpshooter to watch him, or that the warrant requirement applied to this seizure, absent exigency. See Al-Azzawy<\/em>, 784 F.2d at 893. But despite having been seized, it is indisputable that Fisher had not yet been placed under formal arrest and brought into the custody of the police. Because Fisher remained in his house, not free to leave but not in the custody of the police, he continued to be subjected to entries into his home for the purpose of forcing him outside to arrest him, and the Payton<\/em> warrant requirement continued to apply. As a result, we must ask whether any exigency that existed at 6:30 a.m. dissipated before police made further entries into Fisher’s home. We conclude that there was insufficient exigency to justify a warrantless arrest of Fisher at least by the time the CS gas canisters were thrown into his home at approximately 1:00 p.m.<\/p>\n

. . .<\/p>\n

As we have emphasized, to come within the exigency exception, the City must show both that dangerous circumstances existed and that it was infeasible to obtain a warrant safely. See United States v. Manfredi<\/em>, 722 F.2d 519, 522-23 (9th Cir. 1984). We have used a nonexhaustive list of factors, first enunciated in Dorman v. United States<\/em>, 435 F.2d 385, 392-93 (D.C. Cir. 1970) (en banc), to determine whether dangerous circumstances exist for purposes of the exigency exception. See United States v. Blake<\/em>, 632 F.2d 731, 733 (9th Cir. 1980). Those criteria are: (1) “that a grave offense is involved”; (2) “that the suspect is reasonably believed to be armed”; (3) that there exists “a clear showing of probable cause”; (4) that there is “a strong reason to believe that the suspect is in the premises”; (5) that there is “a likelihood that the suspect will escape”; and (6) that peaceable entry is made onto the premises. See Dorman<\/em>, 435 F.2d at 392-93.<\/p>\n

Viewing the evidence in the light most favorable to the City, it was not unreasonable for the jury to find that the officers were justified in considering Fisher a danger both to them and to the public when they first surrounded his home in the early morning hours. Although no grave offense was involved, Fisher was armed, was certainly on the premises, and concedes that there was probable cause to arrest him. He was also intoxicated and had made at least one threatening comment to an officer. Moreover, it was not unreasonable for the jury to conclude that some level of danger persisted throughout the duration of the standoff, as Fisher remained inside his apartment, intoxicated and with access to weapons.<\/p>\n

At the same time, the danger of the situation, if it did not [*40] terminate entirely after 6:30 a.m., certainly did not increase, and to some degree lessened. All nearby residents were evacuated at around 7:30 a.m. Furthermore, Fisher was not seen carrying a rifle for a full seven hours after 6:30 a.m., as the district court emphasized in granting the Rule 50(b) motion. During that post-6:30 a.m. period, Fisher took no further threatening actions, toward the police or anyone else. Nothing happened after 6:30 a.m. that increased the danger of the situation.<\/p>\n

As to the second prong of the exigency exception–which requires that “the government … show that a warrant could not have been [safely] obtained in time,” United States v. Good<\/em>, 780 F.2d 773, 775 (9th Cir. 1986)–the evidence, taken in the light most favorable to the government, clearly shows that there were enough officers working on Fisher’s case with enough time to obtain a warrant safely before the police sent the first of the CS gas canisters into Fisher’s apartment. Given the level of danger after 6:30 a.m., which remained significant but was not increasing, officers had the resources to begin the warrant process without risking the safety of officers or the public. Some of the original officers left the scene at 7 a.m. and returned to the station house, where they or their colleagues could have initiated warrant proceedings. <\/p><\/blockquote>\n

Comment:<\/em> This is a fact dependent case: If other officers had not been coming and going from the scene of the standoff, the facts seemed to show that the standoff was de-escalating rather than escalating. And that does create a problem. If the situation ends up at a stand still and the police decide to act because they are tired of waiting for nothing, then what? This was a tough case, no doubt about it. If I were on the Ninth Circuit, I cannot tell you how I would come down on this because I have not gone to the court’s website and read the briefs. Just because the SWAT team shows up does not ipso facto mean it was a real emergency. When I first entered into the foray of knock-and-announce, I read up on SWAT teams and raid tactics. I have also cross-examined SWAT team members, and the individual officers involved do not always know what started the event they are there for. Later, they can even feel “all dressed up with no place to go,” waiting for anything to happen so they can do what they love best. Here, officers were leaving the scene because they weren’t needed as it dragged out, and that became a problem. But, back to nominal damages, what are the damages to the plaintiff for lack of a warrant?<\/p>\n

Update:<\/strong> CNN.com today<\/a>: SWAT team raids wrong house and leaves it in shambles. Not the same house, of course.<\/p>\n","protected":false},"excerpt":{"rendered":"

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