NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 23 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CHRISTIAN S. FLORES; MYRNA No. 09-55046
MORALES; XIOMARA MORALES;
MELINDA PARRA; MELINDA PARRA, D.C. No. 2:04-cv-07565-PA-E
as Guardian Ad Litem for Vanessa
Rodriguez and Chris Flores; ROSARIO
MORALES, MEMORANDUM*
Plaintiffs - Appellants,
v.
CITY OF MAYWOOD; CITY OF
CUDAHY; PABLO CUNNINGHAM,
Sergeant; ROBERT LEACH; BRETT
BURNS,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted June 8, 2010
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
Before: KOZINSKI, Chief Judge, RAWLINSON, Circuit Judge, and MARBLEY,
District Judge.**
The police officers could reasonably have believed there was probable cause
that Christian Flores (Flores) and Myrna Morales (Myrna) had committed or were
committing criminal offenses at the time of their arrests, and that exigencies
existed due to concerns for officer safety and the safety of others. See United
States v. Quinn, 18 F.3d 1461, 1464 (9th Cir. 1994); United States v. Al-Azzawy,
784 F.2d 890, 894 (9th Cir. 1986).
They could have also reasonably believed that probable cause and exigent
circumstances existed to search appellants’ home. Flores exited the home without
the gun he was thought to have taken inside. The officers therefore had probable
cause to search the house for that gun, which they reasonably believed was
evidence of a crime and still inside. See United States v. Alaimalo, 313 F.3d 1188,
1193 (9th Cir. 2002) (noting that “the securing of a residence” is proper where
there is a “fair probability that . . . evidence of a crime would be found inside”)
(citation omitted). And the officers could reasonably have feared someone still
inside the house might use the gun to shoot at them. This fear for their safety
constituted the exigent circumstances that were also needed to justify the officers’
**
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
2
warrantless search of the home. See Al-Azzawy, 784 F.2d at 894 (defining exigent
circumstances as “those in which a substantial risk of harm to the persons involved
or to the law enforcement process would arise if the police were to delay a search
[or arrest] until a warrant could be obtained”) (citation omitted).
Because the search was supported by probable cause and exigent
circumstances, the officers’ detention of the remaining appellants was reasonable
and did not constitute an arrest. See Sanchez v. Canales, 574 F.3d 1169, 1173 (9th
Cir. 2009).
None of the remaining issues raised on appeal have merit.
AFFIRMED.
3
No. 09-55046
Flores v. City of Maywood
FILED
AUG 23 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALGENON L. MARBLEY, District Judge, dissenting. I respectfully dissent. I
agree with the majority that probable cause existed to believe that Flores was the
suspect who ran into the house with the gun. The officers, however, did not have
probable cause to enter the home after their suspect, Flores, had exited the home,
was arrested, detained, and secured. Under the Fourth Amendment, police officers
need probable cause and exigent circumstances before making a warrantless entry
into a home. Bailey v. Newland, 263 F.3d 1022, 1032 (9th Cir. 2001) (“It is clearly
established Federal law that the warrantless search of a dwelling must be supported
by probable cause and exigent circumstances.”); United States v. Al-Azzawy, 784
F.2d 890, 894 (9th Cir. 1986) (“Probable cause alone will not support a warrantless
search or arrest in a residence, however, unless some exception to the warrant
requirement is also present.”). Once Flores was arrested, the police officers should
have obtained a warrant before searching the home. United States v. Lemus, 596
F.3d 512, 514 (9th Cir. 2010) (Kozinski, J., dissenting from denial of reh’g en
banc) (“If the police surround a suspect's home, guns drawn, and order him out-and
he complies-may the police go rummaging through his home without suspicion
because the suspect was arrested when he was inside? Surely not.”); see also Frunz
v. City of Tacoma, 468 F.3d 1141, 1146 (9th Cir. 2006). Here, because there was
No. 09-55046
Flores v. City of Maywood
FILED
AUG 23 2010
no probable cause, the search was unlawful.
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS