NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 16 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KEITH WALKER, No. 09-35604
Plaintiff - Appellee, D.C. No. 2:08-cv-00549-JCC
v.
MEMORANDUM*
KING COUNTY,
Defendant,
and
OFFICER MARYLISA PRIEBE-OLSON
and OFFICER PAUL AIO,
Defendants - Appellants.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted April 8, 2010**
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: HAWKINS, LUCERO,*** and N.R. SMITH, Circuit Judges.
On appeal, Officer Marylisa Priebe-Olson and Officer Paul Aio (together
“Defendants”) argue that the district court erred in denying their motion for
summary judgment granting them qualified immunity. We disagree and affirm the
district court. Because the parties are familiar with the factual history of this case,
we will not recount it here.
1. The district court correctly determined that Defendants were not entitled to
qualified immunity for their entry into the Walker home. In order to determine
whether Defendants are entitled to qualified immunity, we consider whether, after
viewing the facts in the light most favorable to the party asserting injury, (1) the
facts show the officers’ conduct violated a constitutional right, and (2) whether that
constitutional right in question was clearly established at the time of defendants’
misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other
grounds by Pearson v. Callahan, 129 S. Ct. 808, 818 (2009) (holding Saucier
protocol, while no longer mandatory in all cases, is "often beneficial").
Under the first Saucier prong, Defendants argue that their warrantless entry
was lawful as a “welfare check,” relying on a Washington state case, State v.
***
The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit
Court of Appeals, sitting by designation.
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Gocken, 857 P.2d 1074, 1080 (Wash. Ct. App. 1993). However, the Gocken
holding does not cover Defendants in this case. The Gocken exception does not
apply if: (1) the officers’ motive in making their warrantless entry was to either
make an arrest or search for evidence of a crime; or (2) there was probable cause to
suspect a crime is being or has been committed. Gocken, 857 P.2d at 1080 & n.6.
Viewing the evidence in the light most favorable to Walker, the Gocken rule
does not apply here because: (1) Defendants’ motive in going to Walker’s home
was to investigate the child abuse investigations and whether Walker was a felon-
in-possession of a firearm; and (2) Defendants had probable cause that a crime had
been committed when they entered Walker’s home. Defendants went to Walker’s
home only after receiving abuse allegations from D.W.’s mother. Additionally,
Officer Priebe-Olson had investigated Walker’s criminal history and “the felon-in-
possession issue is part of what she wanted to investigate at the Walker house.”
The record also shows that Defendants had been alerted to the possibility of a gun
at the house by D.W.’s mother.
Under the second Saucier prong, Defendants would be granted immunity if
the constitutional right they violated was not clearly established at the time of their
actions. Again, even assuming Gocken created enough ambiguity to show that the
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law was not clearly established, the Gocken rule did not cover Defendants’ actions
here for the reasons noted above.
2. The district court correctly determined that Defendants were not entitled to
qualified immunity for arresting Walker. Because Defendants’ entry into Walker’s
home was unlawful under the Fourth Amendment, Defendants’ subsequent arrest
of Walker was also unlawful. See Payton v. New York, 445 U.S. 573, 589–90
(1980).
3. The district court correctly determined that Defendants were not entitled to
qualified immunity for their warrantless search of Walker’s home and their seizure
of Walker’s gun. Defendants conducted a warrantless search of Walker’s home
based on information they obtained during an unlawful entry and unlawful
questioning. Consequently, their search of the house was entirely a product of
their unlawful entry and arrest. Cf. Wong Sun v. United States, 371 U.S. 471,
485–86 (1963) (holding that evidence obtained as a result of an illegal search is
inadmissable as “fruit of the poisonous tree”). Moreover, even if exigent
circumstances justifying a warrantless search existed after Defendants entered the
home, Defendants learned of such circumstances only as a result of this unlawful
entry, questioning, and arrest. Exigent circumstances, therefore, cannot render the
search lawful.
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AFFIRMED.
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