FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 05-10640 Plaintiff-Appellee, D.C. No. v. CR-04-00093-LDG District of Nevada, JASPER BLACK, Defendant-Appellant. Las Vegas ORDER Filed April 10, 2007 Before: Betty B. Fletcher and Marsha S. Berzon, Circuit Judges, and David G. Trager,* Senior Judge. Order; Dissent by Judge Kozinski ORDER Judges B. Fletcher and Trager voted to deny the petition for panel rehearing. Judge Berzon voted to grant the petition for panel rehearing. Judge Berzon voted to grant the petition for rehearing en banc and Judges B. Fletcher and Trager recom- mended denial of the petition for rehearing en banc. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the mat- ter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc con- sideration. Fed. R. App. P. 35. *The Honorable David G. Trager, Senior United States District Judge for the Eastern District of New York, sitting by designation. 4061 4062 UNITED STATES v. BLACK The petition for panel rehearing and the petition for rehear- ing en banc are denied. KOZINSKI, Circuit Judge, with whom Judges REINHARDT, KLEINFELD and BERZON join, dissenting from the order denying the petition for rehearing en banc: Once upon a time in the West there was a special place cal- led home. Solemn pronouncements from our nation’s highest court, and our own court, protected it from warrantless police intrusions. “With few exceptions,” the Supreme Court held, “the question whether a warrantless search of a home is rea- sonable and hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27, 31 (2001). Such searches were deemed “presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). We held that the “government bears a heavy burden of demonstrating that exceptional cir- cumstances justified departure from the warrant requirement. The burden [could not] be satisfied by speculation about what may or might have happened.” United States v. Howard, 828 F.2d 552, 555 (9th Cir. 1987) (emphasis added) (quoting United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985)). Police who entered the home without a valid warrant could be held personally liable. Groh v. Ramirez, 540 U.S. 551, 563-65 (2004). That special place is no more. The rules haven’t changed, at least not on paper. But legal rules are only as good as their last application. The panel majority dutifully recites the right standard, but guts it of all meaning by approving an intrusion into the home that does not remotely satisfy it. If the justifica- tion here satisfies the government’s “heavy burden” to show non-speculative “exceptional circumstances,” it’s hard to imagine how we can keep the police from barging into any home anytime they please. UNITED STATES v. BLACK 4063 The relevant facts are undisputed. Walker called 911 at pre- cisely 8:39:3465 A.M. from a grocery store to report that she had just been beaten by Black, who had a gun. At the end of the call, Walker indicated that she would drive back to the apartment with her mother, and that they would wait for the police outside the building in a white pick-up truck. She spoke with the dispatcher until 8:40:1749. Officer Rodriguez was dispatched at 8:42:5825, and arrived at the apartment half a minute later, at 8:43:2487. The total time elapsed between Walker hanging up with the 911 dispatcher and the arrival of the police at the apartment was three minutes and seven sec- onds. Rodriguez testified that it would take about two minutes to drive from the grocery store to the apartment. When Rodri- guez arrived, he did not see Walker, her mother or the white truck. Walker was, at that point, just one minute past her earli- est possible arrival time. Rodriguez and another officer knocked on the apartment door, but nobody answered. The other officer circled around back and found Black in the back- yard. When the officers didn’t find a gun on Black, they took his key to the apartment, performed a “welfare” search of the dwelling and found the gun—and, of course, didn’t find Walker. There was absolutely no evidence of the government’s nightmare scenario that Walker lay bleeding and unconscious inside the apartment. As the 911 dispatcher’s log shows, there was “not enough time for Black to somehow get Walker back into the apartment, and to injure her, and then to leave, as the government theorizes could have been the case.” Berzon Dis- sent at 3974. Nor were there any eyewitnesses, signs of a scuffle, reports of gunshots or even of a commotion. The abduction would have happened in the street, in broad day- light, yet no one saw a thing; the super, who talked to the police, reported nothing unusual. Officer Rodriguez admitted that he had “[n]o information” that Walker was in the residence; his explanation for the war- 4064 UNITED STATES v. BLACK rantless entry was that “if she’d have come back to the resi- dence, [Walker] possibly could have gotten taken . . . back into the house and stuff.” If this satisfies the government’s “heavy burden” to show “extraordinary circumstances” not based on “speculation,” Howard, 828 F.2d at 555, then “heavy burden,” “extraordinary circumstances” and “specula- tion” have no meaning in these parts. The majority gives the government a pass because “the exi- gencies of domestic abuse cases present dangers that, in an appropriate case, may override considerations of privacy.” Maj. op. at 3969 (quoting United States v. Brooks, 367 F.3d 1128, 1136 (9th Cir. 2004)). The problem with this approach is that the government has any number of such crises-du-jour: terrorism, child pornography, child abuse, drugs, hate crimes —the list is endless. When confronted with such serious crimes, it is the job of the police to be suspicious; the job of the courts is to insist that police develop evidence supporting these suspicions before they defile the sanctity of the home. In a particularly disturbing passage, the panel majority opines that “[e]rring on the side of caution is exactly what we expect of conscientious police officers.” Maj. op. at 3969. This is entirely backwards when the cautious error involves invasion of the home. In such circumstances, we expect police to err on the other side of caution by staying out unless and until they obtain a warrant or satisfy the demanding constitu- tional standard for a warrantless search. The majority’s unfor- tunate phrase will be widely seen as a green light for the police to “err on the side of caution” by breaking into peo- ple’s homes based on half-baked suspicions. When a panel of our court can find that the facts here sat- isfy the government’s “heavy burden” for invading the home without a warrant, I despair about the future of our constitu- tional rights. If the right accorded the greatest protection by the Fourth Amendment—the right to privacy of the home— can be so casually brushed aside, no right is safe. Because my UNITED STATES v. BLACK 4065 colleagues do not similarly view this issue as one of excep- tional importance, I sorrowfully dissent. PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON/WEST—SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2007 Thomson/West.