United States v. Struckman

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-30463
Plaintiff-Appellee,
v.  D.C. No.
3:05-CR-00068-HA
RIAN TYLER STRUCKMAN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding

Argued and Submitted
December 10, 2009—Portland, Oregon

Filed May 4, 2010

Before: Jerome Farris, Dorothy W. Nelson and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

6633
 UNITED STATES v. STRUCKMAN 6637

COUNSEL

Jacob Wieselman, Lake Oswego, Oregon, for the defendant-
appellant.

Kent S. Robinson, Assistant United States Attorney, Portland,
Oregon, for the plaintiff-appellee.

OPINION

BERZON, Circuit Judge:

Around midday on December 7, 2004, three uniformed
police officers entered the fenced-in backyard of a private
home in a residential neighborhood of Portland. Guns drawn,
but without a warrant, one scaled the fence and another
kicked open a padlocked gate leading into the backyard. The
only information the officers had at that time was (1) a call
from a neighbor reporting that the owners were at work and
that a white male wearing a black jacket, age unknown, had
thrown a red backpack over the fence and climbed into the
backyard; and (2) their visual confirmation that a red back-
pack was lying against a porch in the backyard and that the
person they saw in the yard, who turned out to be the appel-
lant, Rian Struckman, was a white male wearing a black
jacket, which he allowed to fall to the ground after being con-
fronted by the officers. The officers’ first statements to
6638 UNITED STATES v. STRUCKMAN
Struckman were to order him to get down on the ground.
Struckman’s first statement to the officers was that he lived
at the house. As it turned out, he did, but the officers only
found that out after Struckman was arrested and after they had
searched the backpack, finding an unloaded handgun. By that
point, the officers had also learned that Struckman was a for-
mer felon, however, and arrested him as a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). He was
ultimately found guilty in a jury trial of that crime and sen-
tenced to 17 years in prison.

Struckman appeals the district court’s denial of his motions
to suppress and his sentence. We conclude that the police offi-
cers’ warrantless actions violated Struckman’s Fourth
Amendment rights. We therefore reverse the district court’s
order denying Struckman’s motion to suppress the handgun
found in the backpack and, because the gun was critical to
Struckman’s conviction, vacate the resulting conviction.

I. Background

On December 7, 2004, at approximately 11:45 a.m., Wendy
Grimes called 911 and reported that she saw a white male
wearing a black leather or vinyl jacket throw a red backpack
over her neighbors’ fence and then climb over the fence into
their backyard. Ms. Grimes also stated that her neighbors
were not at home and, although she indicated a suspicion the
man was trying to break into her neighbors’ house, she also
said she could not see what he was doing through her neigh-
bors’ fence.

The dispatcher sent three police officers to investigate the
report, directing them to the home and telling them only that
“[a] white male climbed the fence on the west side. White
guy, black leather jacket, red backpack. Residents not there at
this point.”

Officers Mudrick and Wilson arrived at the house first.
Officer Mudrick approached a padlocked gate leading into the
 UNITED STATES v. STRUCKMAN 6639
backyard on the east side of the house. Officer Wilson
approached the west side of the house. The backyard was
entirely enclosed by a six foot tall fence. Officer Mudrick
climbed atop an object positioned next to the gate to get a bet-
ter view while Officer Wilson peeked into the yard through a
small hole in the fence.

Officer Wilson saw Struckman, who fit the description of
the person given by the 911 dispatcher—“[w]hite guy, black
leather jacket”—walking inside the backyard. He also saw a
red backpack lying next to a deck in the yard. At this same
time, on the other side of the house, Officer Mudrick saw
Struckman walk around the back of the house in his direction.
He saw no signs of any forced entry into the house. As
Struckman turned the corner, he noticed Officer Mudrick star-
ing at him from over the top of the fence. With a look of sur-
prise, he stopped walking.

The following events took place over a span of roughly 25
seconds: Officer Mudrick testified that once Struckman saw
him, he immediately “took off his jacket . . . and let it fall to
the ground.” Officer Wilson’s testimony was slightly differ-
ent: Struckman “shook” his “leather jacket off his shoulders”;
it “just sort of fell down his arms.” Officer Wilson also testi-
fied that Struckman’s hands remained “down by . . . his thighs
. . . as [his] jacket dropped down.” Both officers testified that
Struckman did not attempt to run and had nothing on him at
that point other than his shirt and pants. In particular, he had
no visible weapons or burglary tools.

Officer Mudrick drew his firearm and pointed it at Struck-
man straightaway, ordering him to get down on his knees.
Struckman complied without hesitation. Officer Mudrick then
reholstered his firearm and climbed over the fence into the
backyard. During this time, Officer Wilson, who had also
drawn his firearm, moved to the east side of the house. Offi-
cer Mudrick, who was now inside the yard, drew his firearm
again, approached Struckman, and began to handcuff him. At
6640 UNITED STATES v. STRUCKMAN
this time, Officer Singh arrived at the house and immediately
kicked open the padlocked gate leading into the backyard.
Both he and Officer Wilson then entered the backyard to help
Officer Mudrick finish handcuffing Struckman and search the
area.1

According to Officers Mudrick’s and Wilson’s testimony,2
after Officer Mudrick climbed into the backyard, Struckman
began cursing sporadically and repeatedly stated that he lived
at the house.3 Struckman also requested that Officer Mudrick
use his cell phone to call his mother to confirm that he lived
at the house. Officer Mudrick ignored Struckman’s request,
however, and proceeded to conduct a pat down search. During
this time, Struckman’s behavior alternated between coopera-
tive and aggressive; on one or two occasions Struckman tried
to pull away from Officer Mudrick’s grip.4 As a result, Officer
Mudrick forced Struckman to the ground to complete the pat
down search, at which time he felt a long, hard object in
Struckman’s front right pants pocket. He opened the pocket
and discovered an unloaded handgun magazine. Officer
Mudrick then completed the search and asked Struckman
whether there was a gun inside the red backpack, which was
lying approximately 20 to 25 feet away at this time. Officer
Mudrick testified, and the district court found, that Struckman
replied, “I don’t know, it’s not mine.” Struckman, on the other
hand, testified at trial that he also stated, “It’s my sister’s
bag.”
1
At some point, one of the officers informed the dispatch: “Got a gun
on that guy. Burglar.”
2
Neither Struckman nor Officer Singh testified at the suppression hear-
ing.
3
The district court found that Struckman stated that he lived at the house
before Officer Mudrick climbed over the fence. That finding is not sup-
ported by the record, however, as both Officers Mudrick and Wilson testi-
fied that Struckman did not state that he lived at the house until after
Officer Mudrick was inside the backyard.
4
Struckman testified at trial that he was high on methamphetamine at
this time.
 UNITED STATES v. STRUCKMAN 6641
After Officer Mudrick discovered the unloaded magazine,
Officer Wilson went to the red backpack and lifted a flap that
was on the top of it. He saw the butt of a handgun and
retrieved the gun from the backpack. There was no magazine
in the gun.

Officer Mudrick eventually asked Struckman his name.
Struckman gave his true name and stated that he was currently
on probation. Officer Mudrick then ran a criminal history
check, revealing that Struckman was on probation and did in
fact live at the house.

After he was indicted on one count of being a felon in pos-
session of a firearm in violation of 18 U.S.C. § 922(g)(1),
Struckman moved to suppress the handgun found in the back-
pack, arguing that the officers’ warrantless arrest and entry,
and their subsequent search of the backpack, violated his
Fourth Amendment rights.5 The district court held an eviden-
tiary hearing on the suppression motion and denied it.

The government filed a Notice of Sentence Enhancement
under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).6
Following a jury trial, Struckman was found guilty of being
a felon in possession of a firearm, and sentenced to 17 years
in prison.
5
Struckman subsequently moved to suppress the statement he made in
the backyard concerning the backpack, arguing that the police officers
failed to issue Miranda warnings. Because we conclude that the officers’
warrantless arrest and entry violated Struckman’s Fourth Amendment
rights, we do not reach the Miranda issue.
6
18 U.S.C. § 924(e)(1) provides, in pertinent part, that “[i]n the case of
a person who violates section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of this title for
a violent felony or a serious drug offense, or both, committed on occasions
different from one another, such person shall be fined under this title and
imprisoned not less than fifteen years . . . .”
6642 UNITED STATES v. STRUCKMAN
II. Discussion

[1] The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures . . . .” U.S.
Const. amend. IV. “At [its] very core stands the right of a
[person] to retreat into his own home and there be free from
unreasonable governmental intrusion.” Silverman v. United
States, 365 U.S. 505, 511 (1961). For that reason, “searches
and seizures inside a home without a warrant are presump-
tively unreasonable.” Payton v. New York, 445 U.S. 573, 586
(1980). The presumptive protection accorded people at home
extends to outdoor areas traditionally known as “curtilage” —
areas that, like the inside of a house, “harbor[ ] the intimate
activity associated with the sanctity of a [person’s] home and
the privacies of life.” United States v. Dunn, 480 U.S. 294,
300 (1987) (quotations omitted).

This presumptive Fourth Amendment protection “is not
irrebuttable.” Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th
Cir. 2009), cert. denied, Bonvicino v. Hopkins, No. 09-681,
2010 WL 1265866, at *1 (U.S. April 5, 2010). In particular,
“[t]here are two general exceptions to the warrant requirement
for home searches: exigency and emergency.” United States
v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005). We have
described these exceptions as follows:

The “emergency” exception stems from the police
officers’ “community caretaking function” and
allows them “to respond to emergency situations”
that threaten life or limb; this exception does “not
[derive from] police officers’ function as criminal
investigators.” United States v. Cervantes, 219 F.3d
882, 889 (9th Cir. 2000) (emphasis added). By con-
trast, the “exigency” exception does derive from the
police officers’ investigatory function; it allows them
to enter a home without a warrant if they have both
probable cause to believe that a crime has been or is
 UNITED STATES v. STRUCKMAN 6643
being committed and a reasonable belief that their
entry is “necessary to prevent . . . the destruction of
relevant evidence, the escape of the suspect, or some
other consequence improperly frustrating legitimate
law enforcement efforts.” United States v. McCon-
ney, 728 F.2d 1195, 1199 (9th Cir. 1984) (en banc).

Hopkins, 573 F.3d at 763. To succeed in invoking these
exceptions, “the government must . . . show that a warrant
could not have been obtained in time.” United States v. Good,
780 F.2d 773, 775 (9th Cir. 1986). Here, the government does
not invoke the emergency exception, but does argue that exi-
gent circumstances justified the officers’ warrantless arrest
and entry into Struckman’s backyard.

Before evaluating whether there were exigent circum-
stances, we note that the district court upheld the officers’
warrantless search and seizure under Terry v. Ohio, 392 U.S.
1 (1968). That was error, as the Terry exception to the warrant
requirement does not apply to in-home searches and seizures.
E.g., Martinez, 406 F.3d at 1165 (“[T]he usual rules pertain-
ing to Terry stops do not apply in homes.”). Commendably,
the government does not defend the district court’s suppres-
sion ruling on Terry grounds.

As a result of its Terry approach, the district court did not
decide whether Struckman’s backyard is curtilage subject to
Fourth Amendment protection. That, however, is an issue we
may decide de novo on the record before us. United States v.
Davis, 530 F.3d 1069, 1077 (9th Cir. 2008). The district court
did decide, in the alternative, that the police officers had prob-
able cause to arrest Struckman for “committing some crime
against the residence” and that exigent circumstances justified
the officers’ entry into the backyard “because they were
responding to a 911 call of a potential burglary in progress.”
We review both determinations de novo. Id.; see United
States v. Russell, 436 F.3d 1086, 1089 n.2 (9th Cir. 2004). We
6644 UNITED STATES v. STRUCKMAN
address the issues of curtilage, probable cause, and exigent
circumstances, in turn.

A.

[2] The Fourth Amendment’s protections extend to those
areas in which a person has a “reasonable” expectation of pri-
vacy, Smith v. Maryland, 442 U.S. 735, 740-41 (1979) (quota-
tion omitted); “an individual reasonably may expect that an
area immediately adjacent to a home will remain private.”
Oliver v. United States, 466 U.S. 170, 180 (1984). “[C]ourts
have [therefore] extended Fourth Amendment protection to
the curtilage” to a home, id., defining the extent of the curti-
lage with reference to four factors: “the proximity of the area
claimed to be curtilage to the home, whether the area is
included within an enclosure surrounding the home, the
nature of the uses to which the area is put, and the steps taken
by the resident to protect the area from observation by people
passing by.” Dunn, 480 U.S. at 301.

[3] “[F]or most homes, the boundaries of the curtilage will
be clearly marked; and the conception defining the curtilage
—as the area around the home to which the activity of home
life extends—is a familiar one easily understood from our
daily experience.” Oliver, 466 U.S. at 182 n.12. Struckman’s
backyard—a small, enclosed yard adjacent to a home in a res-
idential neighborhood—is unquestionably such a “clearly
marked” area “to which the activity of home life extends,”
and so is “curtilage” subject to Fourth Amendment protection.
See United States v. Romero-Bustamente, 337 F.3d 1104,
1108 (9th Cir. 2003).

B.

The government asserts that probable cause alone justifies
Struckman’s warrantless arrest and the police officers’ subse-
quent entry into his backyard. That is plainly incorrect. “It is
clearly established Federal law that the warrantless search of
 UNITED STATES v. STRUCKMAN 6645
a dwelling must be supported by probable cause and the exis-
tence of exigent circumstances.” Bailey v. Newland, 263 F.3d
1022, 1032 (9th Cir. 2001) (emphasis added).

The government also asserts, alternatively, that exigent cir-
cumstances excused the officers’ warrantless arrest and entry.
“[W]hen the government relies on the exigent circumstances
exception [to the Fourth Amendment warrant requirement], it
. . . must satisfy two requirements: first, the government must
prove that the officer had probable cause to search the house;
and second, the government must prove that exigent circum-
stances justified the warrantless intrusion.” United States v.
Johnson, 256 F.3d 895, 905 (9th Cir. 2001) (en banc) (per
curiam) (citation omitted); see also Welsh v. Wisconsin, 466
U.S. 740, 740 (1984).

1.

[4] “There is probable cause for a warrantless arrest and a
search incident to that arrest if, under the totality of the facts
and circumstances known to the arresting officer, a prudent
person would have concluded that there was a fair probability
that the suspect had committed a crime.” United States v.
Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984). “[P]robable
cause ‘demands’ factual ‘specificity’ and ‘must be judged
according to an objective standard,’ ” Johnson, 256 F.3d at
905 (quoting Terry, 392 U.S. at 21-22 n.18), taking into
account “the nature and trustworthiness of the evidence of
criminal conduct available to the police,” Beier v. City of
Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004). In assessing
probable cause, we take into account reasonable inferences.
See, e.g., Davis, 530 F.3d at 1084.

Relying on the 911 report, the officers’ initial sighting of
Struckman, and Struckman’s reaction to seeing Officer Mudr-
ick, the government asserts that the officers had probable
cause to arrest Struckman for either burglary in the first
degree, attempted burglary in the first degree, or criminal tres-
6646 UNITED STATES v. STRUCKMAN
pass in the second degree. The government also relies on
Officer Mudrick’s testimony that he believed, based on the
911 report, that he was investigating a burglary or attempted
burglary.

Officer Mudrick’s subjective beliefs are immaterial to our
inquiry: “Probable cause is an objective standard[,] and the
officer’s subjective intention in exercising his discretion to
arrest is immaterial in judging whether his actions were rea-
sonable for Fourth Amendment purposes.” John v. City of El
Monte, 515 F.3d 936, 940 (9th Cir. 2008) (citation omitted);
see Brigham City, Utah v. Stuart, 547 U.S. 398, 404-05
(2006).

[5] We have little difficulty concluding that the officers did
not have probable cause to arrest Struckman for first-degree
burglary or attempted burglary. Under Oregon law,

[a] person commits the crime of burglary in the first
degree if the person violates O[r.] R[ev.] S[tat.] [§ ]
164.215 and the building is a dwelling, or if in
effecting entry or while in a building or in immediate
flight therefrom the person: (a) Is armed with a bur-
glary tool or theft device . . . or a deadly weapon; (b)
Causes or attempts to cause physical injury to any
person; or (c) Uses or threatens to use a dangerous
weapon.

Or. Rev. Stat. § 164.225(1). A person violates Or. Rev. Stat.
§ 164.215, Oregon’s second-degree burglary statute, “if the
person enters or remains unlawfully in a building with intent
to commit a crime therein.” In addition, a person is guilty of
an attempt to commit a crime in Oregon if the person “inten-
tionally engages in conduct which constitutes a substantial
step toward commission of the crime.” Or. Rev. Stat.
§ 161.405(1).
 UNITED STATES v. STRUCKMAN 6647
[6] Here, it is undisputed that upon arriving at the house,
the officers knew only that a neighbor had reported seeing a
white male wearing a black jacket throw a red backpack over
a fence and climb over the fence into the backyard when the
owners were reportedly not home. Officer Mudrick testified
that there were no indications that Struckman had entered or
attempted to enter the home, as there were no signs of forced
entry or the presence of any tools consistent with a possible
burglary. Additionally, Struckman’s presence in the backyard
and his reaction to abruptly seeing Officer Mudrick, unan-
nounced and peering over his six-foot tall fence—stopping,
looking surprised, and shrugging off or allowing his jacket to
fall to the ground—have no bearing on whether Struckman
was attempting a burglary at the home.7

[7] The conclusion that the officers certainly did not have
probable cause to believe that Struckman was engaged in
first-degree burglary or attempted burglary does not end our
inquiry, however. “Because the probable cause standard is
objective, probable cause supports an arrest so long as the
arresting officers had probable cause to arrest the suspect for
any criminal offense, regardless of their stated reason for the
arrest.” Edgerly v. City and County of San Francisco, Nos.
05-15080, 05-15382, 2010 WL 986764, at *4 (9th Cir. March
19, 2010). We therefore consider whether the totality of the
7
It is unclear why Struckman shrugged off his jacket. He may have done
so because his jacket pockets contained methamphetamine, a “digital gram
scale,” and a second unloaded gun magazine. Or, as Officer Mudrick testi-
fied, Struckman may have shrugged off his jacket in order to fight or flee,
free of an encumbrance. Or, as Struckman testified at trial, he may have
simply “slipped his arm out of [his jacket]” because “with the way that
[his] jacket was [hanging off one arm at the time], when [he] went to go
put up [his] arms, [he] thought it might create an obstruction.” In any
event, Struckman’s intention does not matter. Our inquiry is limited to
determining whether the objective facts and circumstances before the offi-
cer are sufficient to warrant a person of reasonable caution to believe that
there was a fair probability that the suspect had committed a crime. Gon-
zales, 749 F.2d at 1337.
6648 UNITED STATES v. STRUCKMAN
facts and circumstances support probable cause that Struck-
man was engaged in another crime. The only alternative
offense the government suggests is second-degree criminal
trespass.

A person commits criminal trespass in the second degree in
Oregon if he “enters or remains unlawfully . . . in or upon
premises,” Or. Rev. Stat. § 164.245(1), where premises are
defined as “includ[ing] any building and any real property,
whether privately or publically owned,” Or. Rev. Stat.
§ 164.205(6). A person enters or remains unlawfully if he or
she “enter[s] or remain[s] in or upon premises when the prem-
ises, at the time of such entry or remaining, are not open to
the public or when the entrant is not otherwise licensed or
privileged to do so[.]” Or. Rev. Stat. § 164.205(3)(a).

Here, the officers came to the house because of information
obtained from the 911 call—namely, that a white male wear-
ing a black jacket had thrown a red backpack over a fence and
climbed into the backyard when the homeowners were report-
edly not home. They then visually confirmed that a person
who fit the description was in the backyard and that there was
a red backpack lying against a deck inside the yard.8 To that
point, the officers were engaging in good police practice.
Assuredly, “police officers ha[ve] a duty to conduct an inves-
tigation into the basis of [a] witness’ report.” Fuller v. M.G.
8
Once again, the government brings up Struckman’s surprised expres-
sion upon seeing Officer Mudrick peering at him from over the top of his
six-foot tall fence, arguing that it supports probable cause that Struckman
was trespassing in the backyard. That fact, regardless whether one views
it as innocuous or suspicious with regard to possible exigency, has little
to do with whether Struckman “enter[ed] or [was] remain[ing] unlawfully”
on someone else’s property in violation of Or. Rev. Stat. § 164.245.
Indeed, one would think almost any resident of a house would be quite
surprised to see a policeman peering at him over his fence while he was
in his backyard. Likewise, as to Struckman’s shrugging off or discarding
his jacket, whether or not it is pertinent to the exigency issue, see infra,
it in no way supports the conclusion that Struckman had no legal right to
be where he was.
 UNITED STATES v. STRUCKMAN 6649
Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991). There was no
surface reason to discredit that Ms. Grimes saw what she said
she saw, or knew what she said she knew.9 So the fact that the
police officers went to the house in response to Ms. Grimes’s
911 report to look around the area and, perhaps, ask questions
was consistent with what citizens expect from law
enforcement—efforts to assure that they and their property are
safe from unlawful, injurious acts by others.

At the same time, Ms. Grimes’s report was very general;
she did not say that she knew who all the occupants of the
house were; and innocent reasons could have explained what
she did see, including the actual explanation—a family mem-
ber who lived at the house did not have his key. Indeed, many
of us can recount tales about getting locked out of his or her
own house, or the house of a relative where one is staying,
and having to devise some creative way to get into the house.

[8] To avoid such errors as occurred here, in seeking to
establish probable cause, “officers may not solely rely on the
claim of a citizen witness . . ., but must independently investi-
gate the basis of the witness’ knowledge or interview other
witnesses.” Arpin v. Santa Clara Valley Transp. Agency, 261
F.3d 912, 925 (9th Cir. 2001); see Hopkins, 573 F.3d at 767
(“[S]tatements from a witness, without further investigation
by the police, are insufficient to support probable cause.”). In
circumstances similar to those here, for example, we have
held that officers did not have probable cause to enter a home
without a warrant based on “information provided by [a]
neighbor [that] suggested that unauthorized people may be in
[a] house,” where there was no sign of a break-in. Frunz v.
City of Tacoma, 468 F.3d 1141, 1144 (9th Cir. 2006). We
have also determined that “officers did not have probable
cause to enter [a] house based merely on a neighbor’s report
9
We note that in Oregon a person may be criminally liable for know-
ingly initiating and transmitting a false report to the police. See Or. Rev.
Stat. § 162.375.
6650 UNITED STATES v. STRUCKMAN
of suspicious activity and an open door,” id. at 1146 n.9 (cit-
ing Murdock v. Stout, 54 F.3d 1437, 1441 (9th Cir. 1995)), or
where a witness was outside the suspect’s house and told the
officers only “that she had been involved in a[ ] [ ] minor car
accident with [the suspect], that she smelled alcohol on his
breath, and that he appeared intoxicated,” Hopkins, 573 F.3d
at 767.

As in Frunz and Hopkins, “[t]here was, in fact, much else
the officers could have done” to investigate the reported activ-
ity. Frunz, 468 F.3d at 1146. Officer Mudrick testified that he
had received “[n]o details as to who resided at th[e] resi-
dence.” But Ms. Grimes had contact with one of the officers
after he arrived at the scene, so the officers could have “ask-
[ed] [her] . . . questions in order to gain information beyond
her cursory and conclusory statements.” Hopkins, 573 F.3d at
767. Such quick inquiries of Ms. Grimes might have deter-
mined who in fact lived at the house and why she thought the
person seen climbing over the fence was not authorized to be
there.10

More importantly, the officers could have asked Struckman
a few simple questions, such as “What’s your name?” “Do
you live here?” “What are you doing in the backyard?”
Instead, immediately after first making eye contact with
Struckman, Officer Mudrick drew his firearm and ordered
Struckman to get on the ground, and the officers surged into
the backyard, with one officer climbing over the fence and
another kicking open the padlocked gate. The officers then
ignored Struckman’s repeated protestations that he lived at the
house and his request that the officers call his mother to con-
firm his statement, even though they could have learned that
10
The 911 transcript indicates that Ms. Grimes initially reported the
wrong address and pointed out the correct one to at least one of the offi-
cers after he had arrived in the area.
 UNITED STATES v. STRUCKMAN 6651
he did in fact live there by checking his identification against
records easily available to them.11

[9] The officers did have reasonable suspicion—a “reason-
able, articulable suspicion that criminal activity is afoot,” Illi-
nois v. Wardlow, 528 U.S. 119, 123 (2000)—that Struckman
was trespassing. But reasonable suspicion is not probable
cause, and it alone cannot excuse a warrantless arrest inside
a private home or its curtilage. Absent some confirmation that
Struckman was not authorized to be in the backyard, it is
doubtful that the totality of the facts and circumstances here
establish that there was a fair probability that Struckman was
trespassing in the backyard.

[10] Nonetheless, no amount of probable cause can justify
a warrantless arrest or entry absent an exception to the war-
rant requirement. See Horton v. California, 496 U.S. 128, 137
n.7 (1990); LaLonde v. City of Riverside, 204 F.3d 947, 954
(9th Cir. 2000). We will assume—although the assumption is
weak—that the officers had probable cause to believe that
Struckman was engaged in criminal trespass when they
arrived.

2.

[11] As previously mentioned, the government relies on
the exigency exception, as opposed to the emergency excep-
tion, to justify the officers’ warrantless actions here. The exi-
gent circumstances exception is premised on “few in number
and carefully delineated” circumstances, United States v.
United States District Court, 407 U.S. 297, 318 (1972), in
which “ ‘the exigencies of the situation’ make the needs of
law enforcement so compelling that the warrantless search is
11
Officer Mudrick testified at the suppression hearing that the officers
on the scene had computers in their patrol cars and radios attached to their
uniforms that they could have used to call dispatch to determine whether
Struckman lived at the house.
6652 UNITED STATES v. STRUCKMAN
objectively reasonable under the Fourth Amendment.” Brig-
ham City, 547 U.S. at 403 (quoting Mincey v. Arizona, 437
U.S. 385, 393-94 (1978)). We have previously defined those
situations as (1) the need to prevent physical harm to the offi-
cers or other persons, (2) the need to prevent the imminent
destruction of relevant evidence, (3) the hot pursuit of a flee-
ing suspect; and (4) the need to prevent the escape of a sus-
pect. See, e.g., Fisher v. City of San Jose, 558 F.3d 1069,
1075 (9th Cir. 2009) (en banc) (safety); United States v.
Ojeda, 276 F.3d 486, 488 (9th Cir. 2002) (safety, escape, and
evidence); Johnson, 256 F.3d at 907 (hot pursuit). Because
the Fourth Amendment ultimately turns on the reasonableness
of the officer’s actions in light of the totality of the circum-
stances, Brigham City, 547 U.S. at 403, however, there is no
immutable list of exigent circumstances; they may include
“ ‘some other consequence improperly frustrating legitimate
law enforcement efforts.’ ” Fisher, 558 F.3d at 1075 (quoting
United States v. Lindsey, 877 F.2d 777, 780 (9th Cir. 1989)).
“The government bears the burden of showing specific and
articulable facts to justify the finding of exigent circum-
stances.” Ojeda, 276 F.3d at 488.

The government suggests that this case involved the exi-
gent circumstances of hot pursuit, escape, and the prevention
of harm to the officers or other persons.12 None of these cir-
cumstances actually existed when Struckman was arrested in
the backyard.
12
The government does not defend the district court’s determination that
the 911 call alone created exigent circumstances because the police offi-
cers were responding to a potential burglary in progress. As previously
discussed, the officers, were not responding to a report of a potential bur-
glary in progress, only a report that a white male wearing a black jacket
and carrying a red backpack had climbed over a fence into the backyard
of a home while the homeowners were not there. Although Ms. Grimes
told the 911 dispatcher that she suspected that the person was going to
commit a burglary, she could not see into the yard to confirm that suspi-
cion, and the dispatcher did not relay that speculative presumption to the
officers.
 UNITED STATES v. STRUCKMAN 6653
[12] First, “ ‘hot pursuit’ means some sort of a chase.”
Santana, 427 U.S. at 42-43. There was no chase here—no
“pursuit” of Struckman, hot or cold. Struckman was already
inside the backyard when the police officers arrived at the
house. Although the officers entered the yard to handcuff
Struckman and take him into custody, they were not chasing
him; Struckman immediately stopped walking through the
backyard when he saw the officers, and he then complied with
their orders. Those same facts make clear that Struckman
made no attempt to escape the yard. Indeed, Officer Mudrick
expressly testified that Struckman made no attempt to flee.

[13] Likewise, contrary to the government’s suggestion
that the general public was in danger, the record contains no
evidence that anyone other than the officers and Struckman
was near the fully enclosed backyard, let alone put in danger
by the occurrences therein. Nor was the police officers’ entry
into the backyard necessary to prevent harm to themselves.
The government points to Struckman’s reaction upon seeing
the officers as suggesting some element of danger—he looked
surprised and took off his jacket. Again, anyone, residents
included, would be surprised at seeing a uniformed police
officer peering at them inside their private, enclosed backyard
from over the top of a six-foot fence. Surprise does not sug-
gest a threat.

Even if Struckman intentionally took off his jacket after
seeing Officer Mudrick—a point on which the record is
murky—that conduct, peculiar as it may have seemed to the
officers at that time, does not support an objectively reason-
able basis for believing that the police officers’ reaction—
immediately drawing their firearms and entering the enclosed
backyard—was necessary to prevent imminent physical harm
to themselves while they remained outside the yard. In fact,
Officer Mudrick testified that after Struckman’s jacket fell to
the ground, he was able to see Struckman’s body clearly and
saw no visible weapons on him. Additionally, Officer Wilson
6654 UNITED STATES v. STRUCKMAN
testified that Struckman’s arms remained down at his sides
after he shed his jacket.

In support of its contention that the exigency exception is
applicable here, the government relies heavily on Officer
Mudrick’s testimony that once Struckman shed his jacket, he
believed that Struckman intended to flee or fight the officers
free of an encumbrance. As previously discussed, however, an
officer’s subjective motivation for his actions is irrelevant in
determining whether his actions are reasonable under the
Fourth Amendment. See, e.g., Brigham City, 547 U.S. at 404
(string citation omitted). Likewise, conjecture about “what
may or might have happened” is insufficient to satisfy the
government’s “heavy burden” of proving exigent circum-
stances. United States v. Howard, 828 F.2d 552, 555 (9th Cir.
1987) (quoting United States v. Licata, 761 F.2d 537, 543 (9th
Cir. 1985)). “It therefore does not matter here—even if their
subjective motives could be so neatly unraveled—whether the
officers entered the [backyard] to arrest [Struckman] and
gather evidence against [him] or to . . . prevent . . . violence.”
Brigham City, 547 U.S. at 405.

[14] Moreover, Officer Mudrick’s belief that Struckman’s
shedding of his jacket meant that he was preparing to fight the
officers assumes an intent to enter Struckman’s yard, but does
not explain or justify it. And there is an additional consider-
ation here that strongly supports the conclusion that there was
no exigency: Although “[a] warrantless arrest of an individual
in a public place for . . . a misdemeanor committed in the offi-
cer’s presence[ ] is consistent with the Fourth Amendment if
the arrest is supported by probable cause,” Maryland v.
Pringle, 540 U.S. 366, 370 (2003) (emphasis added), “it is
difficult to conceive of a warrantless home arrest that would
not be unreasonable under the Fourth Amendment when the
underlying offense is extremely minor.” Welsh, 466 U.S. at
753 (emphasis added). For that reason, “this circuit has
clearly held that ‘an exigency related to a misdemeanor will
seldom, if ever, justify a warrantless entry into the home.’ ”
 UNITED STATES v. STRUCKMAN 6655
Hopkins, 573 F.3d at 769 (quoting LaLonde, 204 F.3d at 956);
see Johnson, 256 F.3d at 909 n.6 (“[I]n situations where the
underlying offense is only a misdemeanor, law enforcement
must yield to the Fourth Amendment in all but the ‘rarest’
cases.”) (quoting Welsh, 466 U.S. at 753). For example, we
have held that an investigation into the whereabouts of a per-
son who had been resisting arrest, a misdemeanor, did not jus-
tify a warrantless entry onto private property. Johnson, 256
F.3d at 908-09. We have also held that the need to obtain a
blood sample from a person suspected of driving under the
influence, a misdemeanor, before the alcohol in his blood dis-
sipated, was insufficient to justify a warrantless home entry.
Hopkins, 573 F.3d at 768-89.

[15] Here, even if the police officers had probable cause to
believe that Struckman was committing criminal trespass in
the second degree in violation of Or. Rev. Stat. § 164.245, the
offense is a Class C misdemeanor, see id., carrying with it a
maximum of 30 days imprisonment, Or. Rev. Stat. § 161.615.
And, while we recognize that “the exigency analysis must
turn on ‘the gravity of the underlying offense,’ . . . not its sta-
tus as ‘jailable’ or ‘nonjailable,’ ” Hopkins, 573 F.3d at 768
(emphasis in original) (quoting Welsh, 466 U.S. at 753), “the
penalty that may attach to any particular offense seems to pro-
vide the clearest and most consistent indication of the State’s
interest in arresting individuals suspected of committing that
offense.” Welsh, 466 U.S. at 754 n.14. The 30-day maximum
penalty attached to second-degree criminal trespass weighs
against any finding of exigency. Cf. Hopkins, 573 F.3d at
768-69 (holding that the exigency exception did not justify a
warrantless home intrusion where the offense was a violation
of Cal. Veh. Code § 23152, a misdemeanor that carried with
it a six month maximum penalty).

[16] In addition, while the commission of a misdemeanor
offense is not to be taken lightly, it militates against a finding
of exigent circumstances where the offense, like the criminal
trespass at issue here, is not inherently dangerous. We have
6656 UNITED STATES v. STRUCKMAN
held, for example, that police officers violate tenants’ Fourth
Amendment rights if they enter the tenants’ apartment without
a warrant based solely on the landlord’s report that the tenants
were trespassing. See King v. Massarweh, 782 F.2d 825, 828
(9th Cir. 1986). Further, “[o]ne suspected of committing a
minor offense would not likely resort to desperate measures
to avoid arrest and prosecution,” United States v. George, 883
F.2d 1407, 1413 n.3 (9th Cir. 1989), so any inference of dan-
ger or escape from the commission of the offense alone is not
reasonable.13

[17] In a case closely analogous to this one, the Sixth Cir-
cuit concluded that “[t]here is simply no legal support for
holding that an ongoing criminal trespass, on its own, consti-
tutes an exigency that overrides the warrant requirement.”
United States v. Washington, 573 F.3d 279, 287 (6th Cir.
2009). We agree. The risk from an ongoing crime can some-
times make a critical difference in determining the reason-
ableness of police conduct. See Georgia v. Randolph, 547
U.S. 103, 126 (2006) (Breyer, J., concurring) (discussing
instances of domestic abuse); see also United States v. Hens-
ley, 469 U.S. 221, 228 (1985). But in the absence of any “im-
mediate and serious consequences,” McDonald v. United
States, 335 U.S. 451, 460 (1948) (Jackson, J., concurring),
resulting from the commission of a crime, the “overriding
respect for the sanctity of the home that has been embedded
in our traditions since the origins of the Republic,” Payton,
445 U.S. at 601, militates against warrantless entry.

[18] Finally, there is the consideration here that even if the
officers had probable cause to believe that Struckman was
trespassing when they first saw him—which, as we said, we
doubt but are willing to assume for present purposes—that
13
By contrast, where there is probable cause to suspect a burglary,
police officers “have no idea who might be inside [the home] and may rea-
sonably assume that the suspects will, if confronted, flee or offer armed
resistance.” Frunz, 468 F.3d at 1145.
 UNITED STATES v. STRUCKMAN 6657
probable cause could easily have been dissipated by minimal
inquiry at the outset, before the officers entered the backyard
and searched and questioned Struckman. Cf. Radvansky v.
City of Olmsted Falls, 395 F.3d 291, 305 (6th Cir. 2005)
(“Police officers may not make hasty, unsubstantiated arrests
with impunity, nor simply turn a blind eye toward potentially
exculpatory evidence known to them in an effort to pin a
crime on someone.”) (internal quotation marks omitted). Any
such inquiry would have promptly revealed that Struckman
actually lived at the house and was not trespassing, let alone
attempting to commit a burglary. Moreover, “as far as the
record reveals, [instead of immediately drawing their fire-
arms, seizing Struckman, and entering the backyard,] the offi-
cers might easily have secured the premises and sought a
warrant permitting them to enter.” Randolph, 547 U.S. at 126
(Breyer, J., concurring).

For all these reasons, “[i]f we were to permit a warrantless
. . . [arrest and] entry under these circumstances, which were
not urgent or life threatening, the effect would certainly
undercut making ‘the presumption of unreasonableness . . .
difficult to rebut,’ ” Washington, 573 F.3d at 289 (second
alteration in original) (quoting Welsh, 466 U.S. at 750), and
would strip tenants and homeowners of much of the protec-
tion “against unnecessary intrusions [o]nto [their] private
[property],” Welsh, 466 U.S. at 748, provided by the Fourth
Amendment warrant requirement.

C.

[19] We emphasize that “Fourth Amendment rights are
personal rights which, like some other constitutional rights,
may not be vicariously asserted.” Alderman v. United States,
394 U.S. 165, 174 (1969). In other words, “[t]o claim the pro-
tections of the Fourth Amendment, defendants must demon-
strate that they had an expectation of privacy in the property
searched and that their expectation was reasonable.” United
States v. Reyes-Bosque, 596 F.3d 1017, 1026 (9th Cir. 2010).
6658 UNITED STATES v. STRUCKMAN
Thus, had Struckman been an actual trespasser, he would not
be able to claim the protections of the Fourth Amendment
with regard to his arrest in the backyard. See United States v.
Hernandez-Gonzalez, 608 F.2d 1240, 1246 (9th Cir. 1979).
As a result, the net effect of our holding is only that police
officers must either obtain a warrant or consent to enter before
arresting a person inside a home or its curtilage or make a rea-
sonable attempt to ascertain that he is actually a trespasser
before making the arrest. That easily could have been done
here by asking Struckman to identify himself, a step one
would ordinarily expect from the police where trespass is sus-
pected.

III. Conclusion

[20] The police officers’ warrantless seizure of Struckman
within his backyard and their entry into the yard to perfect his
arrest, violated the Fourth Amendment.14 We therefore reverse
the district court’s denial of the suppression motion. As the
introduction of the evidence obtained as a result of the offi-
cers’ warrantless actions was critical to Struckman’s convic-
tion, and the government does not contend that any error in
failing to suppress it was harmless, we also vacate the judg-
ment of the conviction.

REVERSED and VACATED.

14
Because we conclude that the police officers’ warrantless arrest and
entry violated Struckman’s Fourth Amendment rights, we need not reach
the other issues raised on appeal.