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
JASPER BLACK, ORDER
Defendant-Appellant.
AMENDING
OPINION AND
DISSENT AND
AMENDED
OPINION AND
AMENDED
DISSENT
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Argued and Submitted
September 14, 2006—San Francisco, California
Filed October 26, 2006
Amended April 9, 2007
Before: Betty B. Fletcher and Marsha S. Berzon,
Circuit Judges, and David G. Trager,* District Judge.
Opinion by Judge B. Fletcher;
Dissent by Judge Berzon
*The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
3959
3962 UNITED STATES v. BLACK
COUNSEL
Anne Traum, Esq., Assistant Federal Public Defender, Las
Vegas, Nevada, for the defendant-appellant.
J. Gregory Damm, Esq., Assistant United States Attorney, Las
Vegas, Nevada, for the plaintiff-appellee.
ORDER
The opinion and dissent filed on October 26, 2006, United
States v. Black, 466 F.3d 1143 (9th Cir. 2006), are amended
as follows:
AMENDMENTS TO OPINION
On page 1145, line 32 add the following sentence at the
beginning of the paragraph: “First, the police did not have
stop-watches in hand and could only approximate the elapsed
times.” In the sentence that originally headed this paragraph,
delete “First” and substitute “Second”. Delete from page
1145, lines 33-39:
Second, the times cited by the dissent are all approx-
imate times. Rodriguez was dispatched at approxi-
mately 8:40 and arrived at approximately 8:43. If
each approximation is off by a single minute, then
Walker could have arrived at the apartment three
minutes before Rodriguez — ample time for Black
to have taken her inside the building. We conclude
that the circumstances do support an objectively rea-
sonable belief that Walker could be in the apartment.
UNITED STATES v. BLACK 3963
At the end of the altered paragraph, add:
Third, what the officers knew at the time was that
Walker said she would meet them at the scene, she
was not there but her attacker was, and he denied liv-
ing in the apartment though he had a key to it. These
circumstances were reason enough for the officers to
believe that Walker could very well be in the apart-
ment injured. In addition, the attacker admitted that
he was aware that the officers were investigating a
domestic violence call. How did he know that? It
could be that Walker told him earlier that she was
calling the police. But a more serious alternative was
also a possibility: Walker had returned and told
Black that the police were on the way to which he
had a violent response. The officers did not have the
time to conduct a thorough examination of all the
information that was available to them and to con-
clude, as we might after the fact, that this was an
unlikely possibility.
As the dissent rightly concedes, whether the
actions of the police are objectively reasonable is to
be judged by the circumstances known to them.
They were not conducting a trial, but were required
to make an on-the-spot decision as to whether
Walker could be in the apartment in need of medical
help; the objective circumstances did not require
them to reach the conclusion that there was little or
no risk that Walker was in the apartment in danger.
To the contrary, the combination of these circum-
stances support an objectively reasonable belief that
Walker could be in the apartment.
AMENDMENTS TO DISSENT
In the third full paragraph on page 1148, replace the sen-
tence “The first officer arrived at 804 J Street, about three
3964 UNITED STATES v. BLACK
minutes after Walker called 911” with “The first officer,
Rodriguez, arrived at 804 J Street at 8:43 a.m., three minutes
after Walker ended her 911 call.”
1. In the last full paragraph beginning on page
1148, replace the first two sentences — “The
majority argues that this timeline of the morn-
ing’s events somehow errs by relying — seem-
ingly, too much — on the evidence before
supported by the record. And yet, these are the
facts before us and the facts upon which we
must rely to make our decision.” — with the
next three paragraphs:
The timeline of events in this case is amply
supported by the record, courtesy of an
exceedingly precise log — one that chroni-
cles the relevant events down to the milli-
second — from the Las Vegas police
department’s communication center.
According to that log, we know that Walker
called 911 at exactly 8:39:3465 and that she
spoke with a dispatcher until exactly
8:40:1749. We also know that Rodriguez
was dispatched at exactly 8:42:5825 and
that he arrived at 804 J Street at 8:43:2487
— again just over three minutes after
Walker ended her 911 call.
The majority prefers to ignore these facts in
favor of conjecture — specifically, its infer-
ence that Black knew the police were inves-
tigating a domestic violence incident
because Walker herself told him about the
911 call, after hypothetically returning to
the apartment. This hypothesis, however,
does not accord with the tight timeline that
makes it nigh unto impossible for Walker to
UNITED STATES v. BLACK 3965
have returned to the apartment after calling
911 but before Officer Rodriguez’s arrival.
Moreover, by hanging its hat on this ver-
sion of events, the majority ignores its own
alternate, but far more plausible, scenario
— namely, that Black knew the police were
investigating a domestic violence incident
because Walker told him that she would
call 911 before fleeing the apartment. This
inference does not hinge on Walker return-
ing to the apartment after calling 911 and,
thus, unlike the majority’s conjecture,
would fit into the timeline presented; not
surprisingly, the majority dismisses it.
Equally plausible under the established
chronological constraints is yet another
possibility — that Black surmised that the
police had arrived to investigate a domestic
violence incident not because of anything
Walker said or did, but simply because he
had been involved in just such an incident
earlier that morning. In short, not only does
the majority base its analysis on pure con-
jecture, but the theories it spins out do not
conform to the detailed timeline the record
establishes.
2. On page 1149, begin a new paragraph with the
text: “To be sure, none of the information . . . .”
3. On page 1149, in the sentence beginning “To be
sure, none of the information . . . ,” replace the
word “here” with “in the record,” so that the
sentence now reads: “To be sure, none of the
information in the record affirmatively confirms
exactly where Walker was after she made her
911 call.”
3966 UNITED STATES v. BLACK
4. On page 1149, edit the sentence that begins “In-
stead, the government’s arguments . . . .” so that
it reads: “Instead, the government’s arguments,
like the majority’s, amount to nothing more than
insufficient ‘speculation.’ ”
AMENDED OPINION
B. FLETCHER, Circuit Judge:
On appeal, Jasper Black challenges his conviction as a
felon in possession, arguing that the district court erred when
it denied his motion to suppress the gun. We affirm.
I.
The police justify their entry into Black’s apartment, not as
one looking for evidence of a crime but as a welfare search
occasioned by a 911 domestic violence call. Police were dis-
patched to the apartment after Black’s ex-girlfriend, Tyroshia
Walker, called 911 and reported that Black had beaten her up
that morning in the apartment and that he had a gun. Toward
the end of her 911 call, Walker told the dispatcher that she
intended to return to the apartment with her mother in order
to retrieve her clothing and that the two women would wait
outside the apartment, in a white Ford pickup truck, for police
to arrive. Officer Rodriguez was dispatched to the scene to
meet the women. When he arrived at the apartment a few
minutes later there were no signs of Walker, her mother, or
the truck. Rodriguez contacted Officer Kikkert, who was
already on his way to the apartment, and directed him to stop
by the grocery store from which Walker had made her phone
call. Kikkert checked the store for signs of Walker but, find-
ing none, he continued to the apartment.
After Kikkert arrived at Black’s apartment, the two officers
knocked on the front door but received no response. They
UNITED STATES v. BLACK 3967
then contacted the apartment manager in an attempt to gain
access to the building. In the meantime, Kikkert circled the
building to inspect the backyard area. There, he discovered an
individual who matched Black’s physical description. The
individual identified himself as Jasper Black and admitted that
he knew the police were investigating a domestic violence
call. He denied knowing the whereabouts of Walker and also
denied that he lived in the apartment. When the defendant
became agitated, one of the police officers patted him down
for weapons and searched his pockets with the defendant’s
consent, which yielded the key to the apartment. Using the
key, Rodriguez entered and made a quick sweep of the apart-
ment to see if anyone was there. No one was present, but
Rodriguez noticed a gun on the bed. Without touching the
gun, he exited, arrested Black, and sought a warrant for the
gun.
[1] The police were justified in their entry because they
feared that Walker could have been inside the apartment,
badly injured and in need of medical attention, and that their
warrantless search of the apartment was, therefore, justified
by exigent circumstances. As the government argued both
during the suppression hearing and on appeal, Walker could
have returned to the apartment after her 911 call, but before
police arrived at the scene. At that point, Black could have
managed to pull her back into the apartment. Once inside the
apartment, Black — in a repeat performance of his behavior
earlier that morning — could have beaten Walker again and
left her in the apartment severely injured. Even worse, he
could have shot Walker using the gun that police knew was
inside the apartment.
The dissent would hold that the circumstances of this case
do not support an objectively reasonable belief that Walker
could be inside the apartment. It emphasizes the short time
span between Walker’s phone call and Rodriguez’s arrival on
the scene. Because Walker was a two-minute drive from the
apartment building when she called the police, and Officer
3968 UNITED STATES v. BLACK
Rodriguez arrived approximately three minutes after the call,
the dissent argues that there was not sufficient time after
Walker’s arrival for the defendant to force her into the apart-
ment. The dissent parses the time too finely.
[2] First, the police did not have stop-watches in hand and
could only approximate the elapsed times. Second, if Black
had seen Walker arrive outside the building, it would take lit-
tle time for him to threaten Walker with a gun and force her
inside. Third, what the officers knew at the time was that
Walker said she would meet them at the scene, she was not
there but her attacker was, and he denied living in the apart-
ment though he had a key to it. These circumstances were rea-
son enough for the officers to believe that Walker could very
well be in the apartment injured. In addition, the attacker
admitted that he was aware that the officers were investigat-
ing a domestic violence call. How did he know that? It could
be that Walker told him earlier that she was calling the police.
But a more serious alternative was also a possibility: Walker
had returned and told Black that the police were on the way
to which he had a violent response. The officers did not have
the time to conduct a thorough examination of all the informa-
tion that was available to them and to conclude, as we might
after the fact, that this was an unlikely possibility.
As the dissent rightly concedes, whether the actions of the
police are objectively reasonable is to be judged by the cir-
cumstances known to them. They were not conducting a trial,
but were required to make an on-the-spot decision as to
whether Walker could be in the apartment in need of medical
help; the objective circumstances did not require them to
reach the conclusion that there was little or no risk that
Walker was in the apartment in danger. To the contrary, the
combination of these circumstances support an objectively
reasonable belief that Walker could be in the apartment.
[3] This is a case where the police would be harshly criti-
cized had they not investigated and Walker was in fact in the
UNITED STATES v. BLACK 3969
apartment. Erring on the side of caution is exactly what we
expect of conscientious police officers. This is a “welfare
search” where rescue is the objective, rather than a search for
crime. We should not second-guess the officers objectively
reasonable decision in such a case.
[4] Our circuit has recognized that “the exigencies of
domestic abuse cases present dangers that, in an appropriate
case, may override considerations of privacy.” United States
v. Brooks, 367 F.3d 1128, 1136 (2004). While we have
stopped short of holding that “domestic abuse cases create a
per se exigent need for warrantless entry,” we continue to
evaluate, on a case-by-case basis, whether the “total circum-
stances, presented to the law officer before a search . . .
relieved the officer of the customary need for a prior war-
rant.” Id. Our own individualized assessment of the circum-
stances presented in this case leads us to the same conclusion
that the district court reached: the officer’s initial warrantless
entry into the apartment was justified by exigent circumstance
and, as a result, the subsequent seizure of Black’s handgun —
this time, accomplished with warrant in hand — was not
unconstitutional under the Fourth Amendment.1
1
Analyzing police action under the “emergency aid” doctrine compels
the same conclusion. Under this doctrine, “law enforcement officers may
enter a home without a warrant to render emergency assistance to an
injured occupant or to protect an occupant from imminent injury.” See
Brigham City, Utah v. Stuart, 126 S. Ct. 1943, 1948 (2006). If, in the
course of doing so, an officer “discovers evidence of illegal activity, that
evidence is admissible even if there was not probable cause to believe that
such evidence would have been found.” See United States v. Martinez, 406
F.3d 1130, 1164 (9th Cir. 2005). In Brigham City, the Supreme Court held
that the emergency aid doctrine applies only if a court concludes that an
officer’s decision to enter without a warrant was objectively reasonable.
See Brigham City, 126 S. Ct. at 1948 (rejecting the argument that the offi-
cer’s subjective motivation is in any way relevant). Because this “objec-
tive reasonableness” test is essentially the same as the one courts use to
determine whether police action is justified under the “exigent circum-
stances” exception, we can affirm the district court’s denial of Black’s
motion to suppress under the emergency aid doctrine as well.
3970 UNITED STATES v. BLACK
[5] We affirm the district court’s decision to deny Black’s
motion to suppress and, in turn, uphold his conviction.
II.
[6] On appeal, Black also argues that the government failed
at the sentencing hearing to prove that he had a prior qualify-
ing controlled substances offense under U.S.S.G.
§ 2K2.1(a)(2), because it never supplied the sentencing judge
with the actual statute of conviction. See United States v.
Pimentel-Flores, 339 F.3d 959, 967 (9th Cir. 2003) (“[T]he
actual statute of prior conviction must be supplied to the dis-
trict court by the government whether or not anyone objects
to its absence.”). The government acknowledges the mistake,
but asks us to correct it by taking judicial notice of a
controlled-substances-related Judgment of Conviction that
was issued by a Nevada state court against Black. Appellate
courts “generally will not consider facts outside the record
developed before the district court,” but “may take notice of
proceedings in other courts, both within and without the fed-
eral judicial system, if those proceedings have a direct relation
to matters at issue.” See United States ex rel. Robinson Ran-
cheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248
(9th Cir. 1992) (taking judicial notice of a California court’s
final judgment).
[7] Because Black did not object to the government’s fail-
ure to provide the statute’s citation before the district court,
we review this matter for plain error. See Pimentel-Flores,
339 F.3d at 967. In so doing, we conclude that although the
government’s error was both “actual” and “plain,” it did not
affect Black’s “substantial rights.” Id. First, Black’s prior con-
viction is clearly related to a controlled substances offense.
Second, if we declined to take judicial notice of the Judgment
of Conviction, we would merely be delaying the inevitable;
our next step would simply be to remand Black’s case for
resentencing. Id. at 969 (remanding to the district court for
resentencing so that the government can satisfy its burden of
UNITED STATES v. BLACK 3971
“submit[ting] judicially-noticeable documents demonstrating
the prior statute of conviction”). Rather than take this unnec-
essary step — and in light of the fact that our decision to
avoid doing so does not affect Black’s substantial rights —
we, instead, take judicial notice of the Judgment of Convic-
tion and affirm Black’s 110-month sentence.
AFFIRMED.
AMENDED DISSENT
BERZON, Circuit Judge, dissenting:
I dissent. Because I believe the officer’s warrantless search
of the apartment cannot be justified under the Fourth Amend-
ment’s “exigent circumstances” exception to the warrant
requirement, I would reverse the district court’s decision to
deny Black’s motion to suppress and overturn his conviction.1
I begin by emphasizing the “heavy burden” that the govern-
ment bears when trying to prove exigent circumstances. See
United States v. Howard, 828 F.2d 552, 555 (9th Cir. 1987)
(citing United States v. Licata, 761 F.2d 537, 543 (9th Cir.
1985)). Exigent circumstances are “those circumstances that
would cause a reasonable person to believe that entry . . . was
necessary to prevent physical harm to the officers or other
persons, the destruction of relevant evidence, the escape of
the suspect, or some other consequence improperly frustrating
legitimate law enforcement efforts.” United States v. Brooks,
367 F.3d 1128, 1135 (9th Cir. 2004) (omission in original)
(citing United States v. McConney, 728 F.2d 1195, 1199 (9th
Cir. 1984) (en banc)). To prove that such circumstances
existed, the government cannot rely on “speculation about
what may or might have happened.” See Howard, 828 F.2d at
1
Were I to reach the issue decided in Part II of the disposition, regarding
sentencing, I would agree with the majority’s conclusion.
3972 UNITED STATES v. BLACK
555. Instead, it must point to “specific and articulable facts
which, taken together with rational inferences . . . , support
the warrantless intrusion.” Id. (internal quotations omitted)
(omission in original). A court, in turn, must view the exigen-
cies “from the totality of circumstances known to the officers
at the time of the warrantless intrusion.” Id. See also United
States v. Arellano-Ochoa, Nos. 04-30545, 05-30328, 2006
WL 2506395, at * 2 (9th Cir. Aug. 31, 2006) (“Whether exi-
gent circumstances exist in a given case is a fact-specific
inquiry that depends on the totality of the circumstances.”). It
must consider whether, in light of these circumstances, an
officer’s decision to enter without a warrant was “objectively
reasonable.” Brooks, 367 F.3d at 1136.
As the majority points out, our court and other circuits have
indeed recognized that domestic violence cases present a
unique set of dangers that may, at times, “override consider-
ations of privacy.” Id. At the same time, there is no domestic
abuse exception to the Fourth Amendment generally, or to the
limitations on the exigent circumstances exception in particu-
lar. Instead, in those domestic violence cases where courts
have upheld a finding of exigent circumstances, the police
were presented with clear evidence that the victim was both
still in the vicinity of the abuser and still in danger. See
United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir.
2005) (“When the domestic violence victim is still in the
home, circumstances may justify an entry pursuant to the exi-
gency doctrine.”). In United States v. Brooks, for example, we
held that exigent circumstances supported an officer’s war-
rantless entry into a hotel room when the officer was dis-
patched to the room after a guest called 911 to report “sounds
of a woman being beaten” from the room next door. 367 F.3d
at 1130. When the officer arrived, the defendant answered the
door and confirmed that a woman had been in the room, that
she had been “very loud,” and that she was now in the bath-
room. Id. Faced with this set of circumstances — and consid-
ering the fact that the officer could not see or hear the woman
but could observe that the hotel room was in “total disarray”
UNITED STATES v. BLACK 3973
— this court held that the officer’s decision to enter the room
without a warrant was justified “by an objectively reasonable
belief that a woman might be injured and entry was ‘neces-
sary to prevent physical harm.’ ” Id. at 1130, 1135. See also
Martinez, 406 F.3d at 1163-64 (holding that no exigent cir-
cumstances justified a warrantless entry where police arrived
at the scene and found the domestic abuse victim already out-
side the home, in the front yard); United States v. Davis, 290
F.3d 1239, 1243-44 (10th Cir. 2002) (finding no exigent cir-
cumstances to justify a warrantless entry, where police
responded to a domestic disturbance call only to have the vic-
tim “appear[ ] without any signs of harm”); United States v.
Cunningham, 133 F.3d 1070, 1071-73 (8th Cir. 1998) (hold-
ing that exigent circumstances justified a warrantless search
of the home where police received a 911 call from a woman
who identified herself and claimed that she was being held
against her will and where, upon arriving at the scene, police
“could hear a woman crying inside the apartment”); Tierney
v. Davidson, 133 F.3d 189, 197 (2d Cir. 1998) (holding that
exigent circumstances justified a warrantless entry and search
of a home where the officer responded to a 911 call reporting
a domestic disturbance and, after arriving at the scene, spoke
to neighbors who informed him “that the shouting had ended
right before his arrival,” thus allowing the officer to reason-
ably conclude that “both antagonists remained in the house”).
In the case before us, however, the government points to no
specific facts leading to the “objectively reasonable” belief
that Walker, following her phone call to 911, somehow found
herself back inside the apartment where Black was staying
and was therefore in need of medical assistance. Instead, all
of the facts available to the police that morning point to the
conclusion that Walker was outside the apartment, not trapped
within it.
The police knew that, at 8:39 a.m., Walker had called the
911 dispatcher from a local grocery store. Twice, the dis-
patcher asked if Walker needed medical assistance; twice,
3974 UNITED STATES v. BLACK
Walker refused. At the end of the conversation, Walker told
the dispatcher that her mother was with her and that, together,
they would return to the apartment on 804 J Street. She
informed the dispatcher that she would stay outside the apart-
ment.
The first officer, Rodriguez, arrived at 804 J Street at 8:43
a.m., three minutes after Walker ended her 911 call. He testi-
fied during the evidentiary hearing that it would have taken
him about two minutes to drive from the grocery store to the
apartment. Even assuming that Walker left the store immedi-
ately after she got off the phone with the 911 dispatcher and
that she immediately headed to 804 J Street, she still would
have only arrived back at the apartment about one minute
before the police. That is not enough time for Black to some-
how get Walker back into the apartment, and to injure her,
and then to leave, as the government theorizes could have
been the case. Further, at no point during his time outside the
apartment, even immediately upon his arrival, did the first
officer hear any noises coming from inside the residence.
The timeline of events in this case is amply supported by
the record, courtesy of an exceedingly precise log — one that
chronicles the relevant events down to the millisecond —
from the Las Vegas police department’s communication cen-
ter. According to that log, we know that Walker called 911 at
exactly 8:39:3465 and that she spoke with a dispatcher until
exactly 8:40:1749. We also know that Rodriguez was dis-
patched at exactly 8:42:5825 and that he arrived at 804 J
Street at 8:43:2487 — again just over three minutes after
Walker ended her 911 call.
The majority prefers to ignore these facts in favor of con-
jecture — specifically, its inference that Black knew the
police were investigating a domestic violence incident
because Walker herself told him about the 911 call, after
hypothetically returning to the apartment. This hypothesis,
however, does not accord with the tight timeline that makes
it nigh unto impossible for Walker to have returned to the
UNITED STATES v. BLACK 3975
apartment after calling 911 but before Officer Rodriguez’s
arrival.
Moreover, by hanging its hat on this version of events, the
majority ignores its own alternate, but far more plausible, sce-
nario — namely, that Black knew the police were investigat-
ing a domestic violence incident because Walker told him that
she would call 911 before fleeing the apartment. This infer-
ence does not hinge on Walker returning to the apartment
after calling 911 and, thus, unlike the majority’s conjecture,
would fit into the timeline presented; not surprisingly, the
majority dismisses it. Equally plausible under the established
chronological constraints is yet another possibility — that
Black surmised that the police had arrived to investigate a
domestic violence incident not because of anything Walker
said or did, but simply because he had been involved in just
such an incident earlier that morning. In short, not only does
the majority base its analysis on pure conjecture, but the theo-
ries it spins out do not conform to the detailed timeline the
record establishes.
To be sure, none of the information in the record affirma-
tively confirms exactly where Walker was after she made her
911 call. Neither, however, does it constitute the kind of “spe-
cific and articulable facts” that, when “taken together with
rational inferences” would “support the warrantless intru-
sion.” Howard, 828 F.2d at 555. Instead, the government’s
arguments, like the majority’s, amount to nothing more than
insufficient “speculation.” Id.2
For these reasons, I respectfully dissent.
2
Unlike the majority, I find the government’s argument equally uncon-
vincing when considered under the “emergency aid doctrine.” Both the
emergency aid doctrine and the exigent circumstances exception require
an “objective reasonableness” analysis. Because police actions that morn-
ing were no more “objectively reasonable” under the emergency aid doc-
trine exception than they were under the exigent circumstances exception,
I believe that their argument under this alternative exception to the Fourth
Amendment’s warrant requirement fails as well.