Fisher v. City of San Jose

CALLAHAN, Circuit Judge,

dissenting:

I respectfully dissent.

What we have here is a very dangerous situation that was resolved safely for all concerned — Fisher, the public, and the police — because of good police work. Nevertheless, the majority penalizes the police by announcing a new warrant requirement *969and imposing liability upon them for failing to obtain a telephonic arrest warrant in the midst of a police standoff that could have turned deadly at any moment.1 After reviewing all the facts and receiving proper instructions on the law, twelve jurors unanimously found that the police had handled the situation lawfully. We should accept the wisdom of the jurors’ decision.

As judges, we should not arm-chair quarterback a crisis from the safety of our chambers. Such post-game analysis is disconnected from reality and leads to the puzzling determination in this case that San Jose police officers need training despite the jury’s finding that they did nothing wrong. The police handled the situation in exemplary fashion and in full compliance with the law. Exigent circumstances excused the warrantless arrest, and the exigent circumstances continued until the police completed that arrest when Fisher surrendered. I would reverse the district court’s grant of Fisher’s Federal Rule of Civil Procedure 50(b) motion and restore the jury’s verdict because the verdict was supported by substantial evidence.

A renewed motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b) is properly granted “if the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to the jury’s verdict.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.2002). “A jury’s verdict must be upheld if it is supported by substantial evidence, which is evidence adequate to support the jury’s conclusion, even if it is also possible to draw a contrary conclusion.” Id. Indeed, we may not substitute our view of the evidence for that of the jury. Id. The majority simply disregards this standard.

The majority now assumes that the San Jose Police Department seized Fisher for purposes of the Fourth Amendment before 6:30 a.m., when they began surrounding his apartment, and that exigent circumstances existed at the time of this seizure. After acknowledging that there is no case addressing whether the police must obtain a warrant if any initial exigency dissipates during the standoff, the majority proceeds to conclude that officers must obtain a warrant during the standoff to justify additional intrusions into the home if the initial exigency dissipates. The majority concludes that the exigent circumstances dissipated in this case because of the lack of activity or communication from Mr. Fisher, despite the fact that he still had access to guns, was still acting irrationally, and a jury’s conclusion that exigent circumstances existed. The majority cites cases suggesting that officers may need to get a search warrant to conduct additional intrusions into the home to justify imposing a requirement that officers obtain an arrest warrant when no further seizure occurs. The only conclusion supported by case law and consistent with common sense, however, is that once a suspect is seized in his home, and there are actually exigent circumstances to justify the arrest, then there is no need to obtain an arrest warrant because there is no additional seizure requiring a warrant. Law enforcement activity to complete the initial seizure in the home is a continuation of the intrusion or seizure in the home, and it does not require an additional arrest warrant.

*970FACTS

The following facts emerge from the record. Fisher was drinking and cleaning 18 guns in his apartment. A security guard at his apartment complex called the police when Fisher’s behavior became menacing. The police arrived shortly after midnight. Fisher was unresponsive for the most part, but insisted on talking about his Second Amendment rights. At approximately 3:00-4:00 a.m., Officer Jan Males, a tactical negotiator, arrived. Fisher told her that he had a right to bear arms. He also invited her into his apartment but threatened to shoot her if she came in. Officer Males considered this to be a criminal threat — a felony.

Throughout the morning, officers observed Fisher through the windows of his apartment walking around with a rifle in his hand, and more than once, aiming the rifle out of the apartment in the general direction of the officers. Officer Boler testified that he saw Fisher point one of his rifles toward Sergeant Ryan and Officer Males twice between 2:45 a.m. and 4:00 a.m. and that he was moving his rifles around his apartment. At 6:23 a.m., Fisher was seen again with a rifle, apparently loading it.

At 7:00 a.m., the department’s Mobile Emergency Response Group (MERGE) took control of the scene, and the officers who originally responded to the scene left. By 7:30 a.m., the police had evacuated all of the apartments in Fisher’s building. One occupant, whose front door was near Fisher’s residence, was evacuated by cutting a hole in her apartment wall that allowed her to leave through a neighboring apartment instead of walking across the front of Fisher’s apartment. At 8:48 a.m., the police turned off the power in Fisher’s apartment in an attempt to force him out. They also broke his sliding glass door and tossed in a “throw phone” so that they could communicate with Fisher because his phone line was busy. At 10:52 a.m., the police set off a “flash-bang” device to get Fisher’s attention and briefly disorient him. At 1:00 p.m., police began throwing gas canisters into the apartment, to no avail. Finally, at 2:13 p.m., police established telephone contact with Fisher via the throw phone and he agreed to leave the apartment unarmed. The police then took him into custody.

DISCUSSION

A warrantless search does not violate the Fourth Amendment where officers have probable cause to believe that a crime has been committed, and there are exigent circumstances such that a warrant could not have been obtained without causing a dangerous delay. Manfredi, 722 F.2d at 522. Fisher concedes that officers had probable cause, and the majority now gives credit to the jury’s finding that there were exigent circumstances when the officers seized Fisher by surrounding his house and showing force. The majority, however, determines that it was “not unreasonable” for the jury to find that the officers were justified in arresting Fisher in his home and that it was “not unreasonable” for the jury to conclude that the danger persisted throughout the standoff.2 (Maj. Op. at 966.) Yet the majority concludes that the exigency somehow lessened to the point where some sort of post-hoc or retroactive warrant was required, despite the lack of any sort of intervening Fourth Amendment search or seizure. Neither our precedent, nor any other federal case, has ever required officers to obtain a warrant to justify a seizure after exigent circumstances were legitimately established. *971Yet the district court, and now the majority, saw fit to overrule the jury’s verdict.

A. Once exigent circumstances exist to justify the warrantless seizure, a warrant is not required unless there is another seizure.

Although the government must “show that a warrant could not have been obtained in time” when attempting to establish exigent circumstances, once exigent circumstances exist, the warrantless seizure is justified. Good, 780 F.2d at 775. This is because a showing of exigent circumstances “overeome[s] the presumption of unreasonableness that attaches to all warrantless home entries.” Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Exigent circumstances are determined at the time of the arrest or search. See Cardwell v. Lewis, 417 U.S. 583, 595-96, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (“The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation’s necessitating prompt police action.”). In the context of searches, the Supreme Court has stated, “we know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing a car under exigent circumstances are foreclosed if a warrant was not obtained at the first practicable moment.” Id. at 595, 94 S.Ct. 2464.

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) (quoting United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.1984)). “The exigencies must be viewed from the totality of circumstances known to the officers at the time of the warrantless intrusion.” United States v. Licata, 761 F.2d 537, 543 (9th Cir.1985). As the Supreme Court recognized in Brigham City v. Stuart, “[t]he role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties.” 547 U.S. 398, 126 S.Ct. 1943, 1949, 164 L.Ed.2d 650 (2006).

The majority acknowledges that the pertinent time to determine whether an exigency exists is at the time that the arrest is effectuated, but then proceeds to ignore that principle to hold that, during armed standoffs, officers must obtain a warrant to justify a seizure that has already happened under exigent circumstances. The Fourth Amendment simply does not require after-the-fact warrants to justify events that already occurred under exigent circumstances. That is the entire point of exigent circumstances — they justify a Fourth Amendment event, in this case the seizure of Fisher in his home.3 Unless there is another Fourth Amendment event, there is no reason to obtain a warrant to justify an arrest that has already occurred and will continue until the arrest is complete.4 See *972United States v. Snyder, 852 F.2d 471, 473-74 (9th Cir.1988) (finding acts incident to a valid arrest did not constitute additional arrests); United States v. Wulferdinger, 782 F.2d 1473, 1477 (9th Cir.1986) (refusing to reach other questions once probable cause and exigent circumstances were found).

B. A standoff is a continuation of the original seizure justified by exigent circumstances.

There is no case law that supports the idea that officers must obtain warrants to justify searches or seizures that have already begun under exigent circumstances while the search or seizure is in progress. Of course, exigent circumstances must truly exist before the officers undertake the search or seizure in order to justify the Fourth Amendment event.5 Also, officers must show that it was impractical or impossible to obtain a warrant before the search or seizure in question in order to show exigent circumstances.6 See e.g., United States v. Echegoyen, 799 F.2d 1271, 1279 (9th Cir.1986); Good, 780 F.2d at 775; Manfredi, 722 F.2d at 523.

There is no support, however, for the idea that, after exigent circumstances have been established and the officers lawfully arrest a person in his or her home, the officers must then go and obtain an arrest warrant to retroactively justify an arrest. Our court has condemned obtaining post-hoc or retroactive warrants as “alien to the Fourth Amendment warrant and reasonableness requirements.”7 United States v. Allard, 634 F.2d 1182, 1187 (9th Cir.1980) (Allard II). Indeed, in every case where exigent circumstances justified an initial intrusion, the exigency “dissipated” in some manner — whether because the suspect is arrested after a hot pursuit, the premises are secured to prevent an escape or destruction of evidence, or a danger to the public is neutralized. We have never required the officers to, after the fact, go back and obtain a warrant to justify the initial lawful intrusion. This is because once exigent circumstances excuse the initial intrusion, officers are allowed to continue with activities until the intrusion — in this case the arrest of Fisher — is complete.

The Supreme Court has held that once an arrest is justified by exigent circumstances, no warrant is required so long as the seizure continues. Michigan v. Tyler, 436 U.S. 499, 510-11, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (concluding that a search that was “an actual continuation” of an intrusion justified by exigent circumstances did not require a further warrant); United States v. McLaughlin, 525 F.2d *973517, 521 (9th Cir.1975) (once an exigency exists, officers are allowed to enter a home to arrest suspects and secure the premises without a warrant). In Michigan v. Tyler, the Supreme Court found that firefighters, as well as arson inspectors and a detective, could enter a home without a warrant because the exigent circumstances created by a fire justified the warrantless intrusion. 436 U.S. at 509, 98 S.Ct. 1942. The Supreme Court specifically rejected the Michigan Supreme Court’s “holding that the exigency justifying a warrantless entry to fight a fire ends, and the need to get a warrant begins, with the dousing of the last flame.” Id. at 509-10, 98 S.Ct. 1942. The Court concluded that restricting the range of activities excused by the exigency to extinguishing the fire was “unrealistically narrow.” Id. at 510, 98 S.Ct. 1942.

In Tyler, the fire chief, a detective, and some investigators left the scene at approximately 4:00 a.m., when the fire was extinguished. Id. at 502, 98 S.Ct. 1942. They returned later that morning after the sun came up and conducted additional investigation without consent or a warrant for the entries or seizure of evidence. Id. The Supreme Court found that although the fire chief, the detective, and other personnel left the scene, their entries “were no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.” Id. at 511, 98 S.Ct. 1942. Therefore, if the initial warrantless event was justified by exigent circumstances, actions that are continuations of that event are also excused. If leaving the scene for a brief period of time constitutes a continuation, then a continuous police standoff certainly is an actual continuation of the initial arrest.

In United States v. Echegoyen, 799 F.2d at 1280, we came to the same conclusion in the context of a warrantless arrest followed by a search by narcotics detectives. After smelling ether, a flammable substance, in the air and determining that there was possibly a serious fire hazard posed by the ether, deputies entered a house and arrested its occupants without a warrant. Id. at 1274. With the suspects in custody, the deputies and a firefighter re-entered the home, turned off the gas burners on a stove, opened the windows, and inspected the residence. Id. During their inspection, the deputies saw drug processing equipment, chemicals, and white powder that was later revealed to be cocaine. Id.

We concluded that the initial entry into the house and arrest of the residents was justified by exigent circumstances. Id. at 1279-80. Then we decided that “the subsequent entry by the narcotics detectives is also as [sic] valid as a continuation of the initial lawful entry.” Id. at 1280 (citing Tyler). After summarizing Tyler, we held that “this second entry was merely a continuation of the initial lawful entry because both were done to alleviate the exigent circumstances.” Id. As a result, we affirmed the denial of a motion to suppress evidence seen by the narcotics detectives. Id.

Pursuant to Tyler and Echegoyen, the initial warrantless seizure of Fisher inside his home was excused by exigent circumstances. Even assuming that the exigency somehow dissipated, the police activities during the standoff to complete the seizure are simply a continuation of the initial lawful seizure. Efforts to communicate with the barricaded suspect, determine his well being, and even to force a conclusion to the standoff are all activities “done to alleviate the exigent circumstances,” that is, to neutralize the threat that Fisher posed to the neighborhood by completing the seizure. Echegoyen, 799 F.2d at 1280. Armed standoffs are essentially continuations of arrests that are begun under exi*974gent circumstances. Without an intervening event, such as an actual escape or the officers abandoning their siege followed by another attempt to arrest the suspect or search the premises, there is no new Fourth Amendment event that requires a warrant.

C. Case law is contrary to the majority’s position.

The majority acknowledges that there is “no case of this court that directly addresses whether police must obtain a warrant during a standoff such as occurred here” and then proceeds to carve out a new Fourth Amendment requirement using slivers of dicta and ignoring Supreme Court precedent.

The majority attempts to build its argument for a warrant requirement during an ongoing standoff upon Mincey v. Arizona, 437 U.S. 385, 390-93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), a case where the Supreme Court rejected a murder scene exception to the general warrant requirement. Mincey, however, did not invalidate the continuation of the initial entry into the home to arrest a suspect, to investigate the welfare of the undercover officer after shots were fired, or to look for more victims. Id. at 388, 98 S.Ct. 2408. The Supreme Court expressly acknowledged that the activities in continuation of the initial intrusion were already completed when the homicide detectives entered the scene to search for evidence. Id. at 388-89, 93, 98 S.Ct. 2408 (noting that the sweep of Min-cey’s apartment for victims and other occupants and securing the scene was separate from the four-day search for evidence that followed). To distinguish Tyler, the Supreme Court stated that “it simply cannot be contended that this search was justified by any emergency threatening life or limb.”

What is clear from the Supreme Court’s discussion in Mincey is that a warrantless search must be related to, or a continuation of activity excused by, the exigent circumstances and that there is no per se exception for particularly grave crimes. Id. at 393-94, 98 S.Ct. 2408. Our case simply does not involve a subsequent entry to search for evidence of a crime. Rather, the issue is only whether an arrest warrant was necessary to seize Mr. Fisher in his home. The arrest was not completed, however, until the officers had physical custody of Mr. Fisher or he submitted to the show of authority and surrendered. See California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (stating that a completed “arrest requires either physical force” or “submission to the assertion of authority.”). We must not lose sight of the fact that Mr. Fisher is contesting his warrantless arrest, not a separate or subsequent search.

In an attempt to further bolster its position, the majority reads United States v. Alvarez, 810 F.2d 879, 883 (9th Cir.1987), to support an argument that we require a good-faith effort to obtain a warrant in every case where the government claims exigent circumstances. Alvarez is factually distinguishable because the exigent circumstance claimed in Alvarez was that the police feared a suspect in another location might become suspicious if there was additional delay before delivery of a large amount of cocaine. Id. at 880. Furthermore, the holding in Alvarez was that exigent circumstances did not exist that could excuse the absence of, or failure to obtain, an arrest warrant at the time the arrest occurred. See id. at 881, 882 (reviewing “a conclusion of exigent circumstances” de novo and concluding that “[t]he agent’s actions in this case were thus fundamentally inconsistent with any true exigency.”).

In this case, the majority acknowledges that at the time the officers surrounded Fisher’s house, exigent circumstances ex*975cused the need to obtain an arrest warrant to seize Fisher in his home. The dicta from Alvarez quoted by the majority does not require that law enforcement make a good-faith effort to seek a warrant when exigent circumstances actually existed to excuse the absence of a warrant.8 Id. at 883. Rather, the passage stands for the unremarkable proposition that the government must either present sufficient evidence of exigent circumstances or have some other justification for not obtaining a warrant at the time of an arrest.9 Id.

The majority also turns the Sixth Circuit’s decision in Estate of Bing v. City of Whitehall, 456 F.3d 555 (6th Cir.2006), on its head by interpreting its dicta to state that exigent circumstances may dissipate sufficiently to somehow require a warrant. Bing simply concludes “that exigency did not terminate due to the passage of time or the police’s actions.” Id. at 565. Specifically, the Sixth Circuit noted that, “[t]he passage of time did not terminate the exigency because the ticking of the clock did nothing to cut off Bing’s access to his gun, or cure him of his willingness to fire it, or move to safety the people nearby who refused to evacuate.” Id. Noting that the police had to take time to gather intelligence, wait for backup, and execute their plan, the Sixth Circuit concluded that these acts “did not terminate the exigency.” Id. Furthermore, the Sixth Circuit decided that “the gathering of information by police, even in the face of immediate danger, does not negate a dangerous exigency.”10 Id. at 566. In addition, the Sixth Circuit in Bing analyzed the use of alternative means — using pepper gas and a bag phone — for resolving the standoff and found that they did not negate the exigency. Id. at 566-69. Thus, Bing stands for the common-sense proposition that if exigent circumstances exist at the beginning of an armed standoff, that exigency continues throughout the standoff until it is resolved.

The majority’s attempt to infer through negative implication that the Sixth Circuit intended to micro-manage situations by imposing a blow-by-blow exigent circumstances analysis for every activity that is a part of an armed standoff stretches Bing beyond its logical limits. The Sixth Circuit’s own language explains that:

It cannot be that an immediate-danger exigency could have existed only when *976the police reasonably felt forced to raid the house. If this standard were generally applicable, any time the police methodically increase the pressure on a barricaded gunman to force his exit, without invading, a rational juror may on that basis find no immediate danger. This position is not compelled by the Fourth Amendment.

Id. at 567. The Sixth Circuit recognized in Bing that the type of step-by-step exigency analysis advocated by the majority would lead to absurd consequences such as a finding that there was no exigency unless the officers subjectively feel compelled to forcibly raid a home. Officers must be allowed to “methodically increase the pressure on a barricaded gunman to force his exit, without invading,” because not only is it reasonable, but gradual pressure, negotiations, and other tactics short of immediate invasion are likely to lead to a peaceful result such as the one in this case. Id.

The majority’s decision cannot be squared with the Sixth Circuit’s decision in Bing and thus, creates a clear circuit split on how to analyze exigent circumstances in an armed standoff. If the Sixth Circuit can reasonably conclude that the exigency that created the need for officers to surround the home of an irrational, possibly intoxicated, armed gunman was not negated over the course of a five-hour standoff or the use of pepper gas and a bag phone, then why is it impossible for the jury in this case to reasonably reach the same conclusion?

The majority’s reliance on the Sixth Circuit’s decision in O’Brien v. City of Grand Rapids, 23 F.3d 990, 993-94 (6th Cir.1994), is also misplaced. First, the court in O’Brien held that there was no exigency to support the use of search probes. Id. at 997-98. Second, O’Brien concerned probable cause to search and seize the house, not probable cause to arrest.11 Id. at 995. The majority confuses the issue presented of whether or not Fisher’s arrest was excused by exigent circumstances with whether further intrusions could be deemed searches that might require a warrant. The result is an opinion that would essentially force officers to either get judicial approval of every tactical decision designed to bring a peaceful resolution to an armed standoff or to abandon an armed standoff.

D. The wisdom of the jury should not be disturbed.

The twelve jurors in this case, however, saw this case differently. They appear to have reasonably found that between the early morning hours and 2:35 p.m. the officers reasonably believed that Fisher still had access to guns, was still irrational, or was still intoxicated.12 Nothing in the record negates the exigency created by Fisher when he had 18 loaded firearms, threatened others, pointed his rifle at police, was intoxicated, and acted irrationally. These circumstances provided the officers with ample grounds to be seriously concerned about their own safety as well as the safety of the public, particularly because the events took place in an apartment complex. Construing the evidence and the jury’s verdict in the light most favorable to the City, as we are required to *977do, it cannot be said that the jury was unreasonable in concluding that there were exigent circumstances justifying the City’s failure to obtain a warrant before arresting Fisher and that the exigent circumstances continued throughout the standoff.

CONCLUSION

Armed standoffs are fluid and dangerous situations that are stressful, tense, and require difficult decisions to resolve peacefully. Not all of them result in the peaceful surrender of the suspect. See Bing, 456 F.3d at 562 (officer shot suspect); Ewolski v. City of Brunswick, 287 F.3d 492, 499-500 (6th Cir.2002) (mentally disturbed, armed, and dangerous father shot his son and himself). At any time, a standoff can end peacefully, or it can explode into violence. Sometimes, hostages are involved. Armed standoffs always require difficult, complex, and stressful tactical decisions that attempt to balance the safety of all involved.

It is vital for the courts to provide clear guidelines to law enforcement that allow them to manage armed standoffs without the fear that, at some undetermined point, they will be subject to liability. Under the majority’s decision, it is impossible to determine when the officers become liable. For example, if Mr. Fisher surrendered while officers were seeking a warrant, according to the majority opinion, the officers would be liable for failing to obtain an arrest warrant earlier. Is the cut-off point after an hour, ninety minutes, during the first phone call, when the suspect disappears from view for more than five minutes, if the suspect demands a pizza, or when there is a shift change? Armed standoffs present officers with a multitude of variables, situations, and often irrational acts by the suspect that require the exercise of reasoned judgment that the courts cannot, and should not, attempt to manage.

Imposing a requirement that officers must, at some arbitrary and undefined point in an armed standoff, seek an arrest warrant is contrary to our precedent holding that exigency is established at the time of arrest and continues until negated by some new act or fact. See Lindsey, 877 F.2d at 781-82 (concluding circumstances outside of the officers’ control did not dissipate the exigency). Furthermore, imposing additional warrant requirements on the use of pepper gas, throw phones, and alternatives to deadly force would not serve the Fourth Amendment’s purpose of preventing unreasonable searches and seizures. Instead, it will create unnecessary confusion and uncertainty about the law and may endanger the public, the police, and even the suspect.

The Supreme Court in Tyler, and our own court in Echegoyen recognized that once exigent circumstances justify an initial intrusion into the home, the officers are allowed to take all reasonable steps necessary to complete that intrusion without obtaining a warrant. Applying this simple principle to this case, officers are allowed to conduct a standoff and take steps to complete an initial warrantless arrest that is excused by exigent circumstances without obtaining a warrant. Because we consider a person arrested in his home once the police surround the home and confíne a suspect to the home, and because that arrest is not complete until the officers obtain physical custody of the suspect or the suspect submits to their authority, an armed standoff is simply a continuation of the initial arrest, and officers should be free to take all necessary steps to complete the arrest.

The jurors in this case determined that exigent circumstances justified the initial arrest and reached an eminently reasonable conclusion — that the San Jose Police Department should be commended for *978handling this dangerous situation properly and ultimately bringing about a peaceful resolution. The Sixth Circuit in Bing analyzed similar facts and reached the same conclusion as the jury in this case. Making all inferences in favor of the verdict, the jury’s conclusion was supported by substantial evidence and was a reasonable interpretation of the facts. Accordingly, the district court should not have denied Fisher’s motion for judgment notwithstanding the verdict.

For these reasons, I would reverse the district court’s grant of Fisher’s renewed motion for judgment as a matter of law and reinstate the jury’s verdict.

. Our precedents acknowledge that “[a] telephonic warrant may not be obtained simply by calling a magistrate. Among other things, a 'duplicate original warrant' must be prepared in writing and read to the magistrate verbatim.'' United States v. Manfredi, 722 F.2d 519, 523 (9th Cir.1983). Furthermore, we have concluded that it is “not a simple procedure.” United States v. Good, 780 F.2d 773, 775 (9th Cir.1986).

. The majority's acknowledgment that the facts do not compel a single perspective is a concession that there is not only one reasonable conclusion that is contrary to the jury's verdict. Accordingly, we are not at liberty to disturb the verdict. Pavao, 307 F.3d at 918.

. In United States v. Lindsey, 877 F.2d 777, 782-83 (9th Cir.1989), we concluded that it was improper to evaluate exigent circumstances after the warrantless entry, and that a one-hour delay while officers waited for backup "did not dissipate the exigency." The majority’s position that courts may analyze exigency after the seizure of a surrounded suspect, without evidence of any facts that negate the initial exigent circumstance, attempts to implicitly overrule Lindsey.

. The majority’s analysis addresses additional intrusions, as opposed to the arrest. We cannot decide issues concerning searches or seizures of property because the Constitution "limits our role to resolving the '[cjases’ and '[cjontroversies’ before us”; therefore "we *972decide only the case at hand." Hein v. Freedom from Religion Found., Inc., - U.S.-, 127 S.Ct. 2553, 2572, 168 L.Ed.2d 424 (2007). As a result, we are limited to reviewing only the warrantless arrest.

. As a result, cases such as Sharrar v. Felsing, 128 F.3d 810, 820 (3rd Cir.1997), where there was insufficient evidence that exigent circumstances existed as a matter of law at the time of arrest to support summary judgment are distinguishable. To the extent that Sharrar considered exigent circumstances to be a jury question, the jury here explicitly found that exigent circumstances existed.

. Under the majority’s reasoning, a clever attorney can now argue that the fact that the officers obtained an arrest warrant at some point shows that they could have obtained a warrant, thus defeating the initial exigency. We should not subject officers to this type of "damned if you do, damned if you don’t” approach to liability.

. In United States v. Allard, 600 F.2d 1301, 1304 (9th Cir.1979) ("Allard I”), we stated that later obtained warrants "could not retroactively authorize the entry.” Yet the majority now insists that officers must obtain a warrant to justify an arrest that has already occurred and that officers are simply seeking to complete.

. The full passage from Alvarez reads:

The government argues that obtaining a telephone warrant is not an easy task, and it points to our decision in United States v. Good, 780 F.2d at 775. But our decision here does not invariably require the government to have a telephone warrant before it moves in on a dangerous suspect. It simply requires the government either to attempt, in good faith, to secure a warrant or to present evidence explaining why a telephone warrant was unavailable or impractical.

810 F.2d at 883.

. Because the majority announces a new warrant requirement for armed standoffs when exigent circumstances clearly exist and continue until the end of the standoff, the officers would appear to be entitled to qualified immunity. See Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 757, 115 S.Ct. 1745, 131 L.Ed.2d 820 (1995) (noting that officers were not liable on qualified immunity grounds when a court declares an arrest unconstitutional for the first time).

.The Supreme Court has stated, “[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.” Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). We have also recognized this principle in the context of exigent circumstances. See Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir.2003) (concluding delay by police for investigation did not negate exigent circumstances); Bailey v. Newland, 263 F.3d 1022, 1033 (9th Cir.2001) (same).

. Indeed, Fisher only contests his seizure by the officers in his home; he did not contest any search-related issues. As such, any issues concerning searches are not before us and may not be decided. See Steagald v. United States, 451 U.S. 204, 212-13, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (explaining differences between probable cause for arrest and probable cause to search).

. The majority, not content to second-guess this jury, also speculates about what the jury in Fisher’s criminal trial thought. (Maj. Op. at 967-68.) Such speculation is improper.