In a bizarre case out of the Ninth Circuit, a panel holds 2-1 in a § 1983 case that a 12 hour police standoff with a potentially drunk and armed suspect at some point required a warrant, something that I would not have expected. The exigency was not continuing. “On the afternoon of Saturday, October 23, 1999, Fisher bought two twelve-packs of beer and settled in at home for an evening of watching the World Series and cleaning rifles from his collection of approximately eighteen World War II-era firearms. Both the guns and the beer figured prominently in the ensuing events.” Fisher v. City of San Jose, 475 F.3d 1049 (9th Cir. January 16, 2007) (case name is free link). This case is just too complicated to explain, but the gist is that Fisher was never quite seized because he would not come out of his house, despite the use of a throw telephone to communicate with him and lobbing in tear gas cannisters. At some point, it became necessary to get a warrant to enter because, after 12 hours, there was no longer any exigency. Fisher was charged with a felony for pointing a gun at police, but the jury deadlocked, and he pled to a misdemeanor and filed the § 1983 case. That jury found for the defendants, but the district court on a judgment NOV awarded nominal damages, which were sustained.
A jury found for the defendants on all claims, including a claim for warrantless arrest. Fisher thereupon filed a renewed motion under Federal Rule of Civil Procedure 50(b) for judgment as a matter of law on the warrantless arrest claim. Granting the motion against the City alone, the district court ordered the City to pay nominal damages of one dollar and issued an injunction regarding future training of police officers. We uphold the district court’s ruling on appeal, as we agree that the failure to obtain a warrant under the unusual circumstances of this case constituted a constitutional violation as a matter of law.
The conclusion:
Standoffs with barricaded suspects present hard decision-making problems for police, often requiring split-second tactical determinations. The results can be tragic even when the police behavior is for the most part quite reasonable. See, e.g., Ewolski, 287 F.3d at 499 (involving the object of a standoff who shot himself and his son during the standoff). A warrant may not prevent such tragic occurrences. But interposing a neutral and detached magistrate between the police, who are “acting under the excitement that attends the capture of persons accused of crime,” United States v. Lefkowitz, 285 U.S. 452, 464 (1932), and the citizen, who may or may not have committed a wrong, may, on occasion, bring a useful perspective to the situation. Id. (“[T]he informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests.”); see also Johnson v. United States, 333 U.S. 10, 14 (1948) (noting that the Fourth Amendment’s “protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime”). The warrant requirement’s goal is to permit a third party to evaluate whether the police should be intervening into a situation at all. If not, police retreat can prevent an awkward situation from escalating into a dangerous one.
Here, it may well be that a timely application to a magistrate would have resulted in issuance of a warrant for Fisher’s arrest and events would then have proceeded pretty much as they did. But that is not certain, and is in any event beside the point. The criminal jury hung on the felony count presented to it, so it is at least possible that a magistrate would have thought the police lacked probable cause on the charge for which he was arrested. More importantly, it is precisely to require the officers involved to articulate the grounds for arrest and to obtain the views of a dispassionate magistrate on the adequacy of those grounds that a warrant is required.
Here, there were plenty of police officers involved and there was plenty of time — at least several hours — to obtain such a warrant [even a telephonic warrant]. It was unconstitutional to fail to do so.
The collective knowledge doctrine does not require that the officers making the stop know why. Defendants’ arguments that all officers must be part of a “coordinated criminal investigation” is rejected as unworkable and contrary to Supreme Court authority. United States v. Ramirez, 473 F.3d 1026 (9th Cir. January 16, 2007):
Moreover, there is good reason to reject such a proposed limitation:
“The accepted practice of modern law enforcement is that an officer often makes arrests at the direction of another law enforcement officer even though the arresting officer himself lacks actual, personal knowledge of the facts supporting probable cause. … [¶] … The rule exists because, in light of the complexity of modern police work, the arresting officer cannot always be aware of every aspect of an investigation; sometimes his authority to arrest a suspect is based on facts known only to his superior or associates.”
Jensen, 425 F.3d at 704-05 (citations and internal quotation marks omitted). The Supreme Court has shared these concerns, specifically endorsing our view “‘that effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.'” Hensley, 469 U.S. at 231 (quoting United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976)).
The Quarles public safety exception permitted officers to question a suspect about having a gun after an exigent circumstances entry into his motel room and then look for it after he admitted he had one. United States v. Newsome, 475 F.3d 1221 (11th Cir. January 16, 2007).
