join, dissenting:
I can not agree with the majority’s conclusion that substantial evidence supports the jury’s verdict that Steven Fisher’s Fourth Amendment rights were not violated when San Jose City police officers arrested him without a warrant at his home on October 24, 1999. The majority holds that Fisher’s armed threats justified his warrantless arrest. The majority’s analysis, however, is neither consistent with case law defining exigent circumstances, nor supported by the evidence, and effectively eliminates the need for law enforcement officers to obtain an arrest warrant when confronted with an armed standoff at a person’s home.
To justify a warrantless seizure on the basis of exigent circumstances, the government must establish the factual basis for the exigencies and that there was no time to obtain a warrant before taking action to alleviate the exigencies. United States v. Good, 780 F.2d 773, 775 (9th Cir.1986). In reversing the district court’s Rule 50(b) judgment, the majority disregards the latter requirement. Here, although the City presented substantial evidence that the officers reasonably believed that Fisher posed a threat to them and others, it presented no evidence to show that the officers did not have time to obtain a warrant before seizing Fisher while he was inside his apartment. Because the City failed to make such a showing, I agree with the district court that there was insufficient evidence to support the jury’s verdict on *1086the issue of exigent circumstances. I would therefore affirm the district court’s order granting Fisher’s motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b).
I.
The Fourth Amendment, in part, protects “[t]he right of the people to be secure in their ... houses ... against unreasonable searches and seizures ...” U.S. Const, amend. IV. As the Supreme Court has firmly recognized, “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). Applying this protection to a person’s home, the Court in Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), held that the Fourth Amendment “prohibits the police from making a warrantless and non-consensual entry into a suspect’s home in order to make a routine felony arrest.” Without a warrant, such a seizure is “presumptively unreasonable.” Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (quoting Payton v. New York, 445 U.S. at 586, 100 S.Ct. 1371). The need to secure a warrant, however, is not necessary when the police have probable cause to arrest and exigent circumstances exist. Id. Importantly, when the government attempts to justify a warrant-less seizure of a person in his home, “the police bear a heavy burden ... to demonstrate an urgent need that might” excuse the obligation to obtain a warrant. Id. at 749-50, 104 S.Ct. 2091 (emphasis added).
In applying this exception to the warrant requirement, we have defined
exigent circumstances as those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) 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. McConney, 728 F.2d 1195, 1199 (9th Cir.1984) (en banc); see also United States v. Brooks, 367 F.3d 1128, 1133 n. 5 (9th Cir.2004) (same). “Exigent circumstances alone, however, are insufficient as the government must also show that a warrant could not have been obtained in time.” United States v. Good, 780 F.2d at 775; see also United States v. Lai, 944 F.2d 1434, 1442 (9th Cir.1991) (“Exigency necessarily implies insufficient time to obtain a warrant; therefore the Government must show that a warrant could not have been obtained in time.”); United States v. Howard, 828 F.2d 552, 555 (9th Cir.1987) (same); United States v. Echegoyen, 799 F.2d 1271, 1279 (9th Cir.1986) (same); United States v. Manfredi, 722 F.2d 519, 522 (9th Cir.1983) (holding that as part of showing that a warrantless entry was “imperative,” the government must demonstrate “that a warrant could not have been obtained in time even by telephone under the procedure authorized by Fed.R.Crim.P. 41(c)(2).”). Our definition of exigent circumstances is not novel. Indeed, the Supreme Court has stressed that a warrantless entry into a home may be “legal when there is compelling need for official action and no time to secure a warrant.” Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (emphasis added).
For purposes of the Fourth Amendment analysis in this case, it makes no difference that the officers did not enter Fisher’s apartment to take physical custody of him. We have long recognized that “it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home.” United States v. Johnson, 626 F.2d 753, 757 (9th Cir.1980), aff'd on other grounds, 457 U.S. *1087537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); see also United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir.1985) (holding that because defendant “only emerged under circumstances of extreme coercion, the arrest occurred while he was still inside his trailer.”). With these basic Fourth Amendment principles in mind, I turn to the merits of the City’s appeal and explain why I can not agree with the majority.
II
In the context of an armed standoff, the majority holds that as long as probable cause and exigent circumstances existed at the initial seizure the police are not required to assess whether the “exigency persisted throughout the standoff because the standoff was no more than an actual continuation of the initial seizure.” Maj. Op. at 1071 (internal quotation marks omitted). Under this rule, any dissipation of the exigencies before the person can be taken into physical custody does not require the police to reassess the need for a warrant. Maj. Op. at 1075-76. Although I seriously question whether the majority’s holding is supported by Michigan v. Tyler or United States v. Echegoyen, the cases on which the majority primarily relies, I would not, in light of the record, decide those issues here.1 In my view, because the City presented no evidence explaining why the officers did not have time to obtain a warrant when they seized Fisher at about 6:30 a.m., exigent circumstances did not exist and the warrantless seizure of Fisher violated the Fourth Amendment.2
I begin by noting that, for purposes of the Fourth Amendment, a seizure occurs *1088when police officers use such force or show of authority that “a reasonable person would have believed he was not free to leave.” United States v. Al-Azzawy, 784 F.2d at 892 (quoting Florida v. Royer, 460 U.S. 491, 501-03, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)); see also United States v. Johnson, 626 F.2d at 756. Where the police attempt to justify a warrantless seizure on the basis of exigent circumstances, “[t]he critical time for determining whether any exigency exists is the moment the officer makes the warrantless entry.” United States v. Johnson, 256 F.3d 895, 907 (9th Cir.2001) (en banc). Here, until the San Jose Police Department’s Mobile Emergency Response Group and Equipment (“MERGE”) team arrived, a reasonable person in Fisher’s position would not have believed that his freedom had been so restricted that he was not free to leave his apartment. That is the moment, in light of all the circumstances, at which we must determine whether the urgency of the situation was such that the police had no time to obtain a warrant.
Between the arrival of the first responder, Officer Ryan, and the assembly of the MERGE team around 6:30 a.m., nothing significant about the officers’ activities would have led a reasonable person to believe that he was not free to leave if he desired to do so. Officer Ryan’s actions were limited to coaxing Fisher out of his apartment and attempting to engage him in a meaningful conversation. When this proved unsuccessful, Ryan called a tactical negotiator, Officer Males, to assist. She responded and arrived around 3:15 a.m. Her attempts to speak with Fisher were also unsuccessful. Indeed, Fisher informed Males that she could enter his apartment, but he would shoot her if she did. Males, like Ryan, neither ordered Fisher to exit his apartment, nor displayed a weapon; her objective was to persuade Fisher to exit his apartment peacefully so that the officers could speak with him about the events earlier in the morning. Both Males and Ryan specifically testified that they never told Fisher he was under arrest or was required to leave his home. Although other officers were positioned around the apartment building, there is nothing in the evidence that shows that Fisher was aware of their presence, or that the other officers attempted to make their presence known to Fisher.
The arrival of the MERGE team on the scene, however, changed the atmosphere outside Fisher’s apartment. Ryan called for the MERGE team at about the same time that he called for the tactical negotiator. Sometime between 6:00 and 7:00 a.m., approximately seventeen MERGE officers assembled at the scene along with an armored rescue vehicle and a mobile command center. The MERGE officers, dressed in tactical gear and armed, did not take long to make their presence known to Fisher. The MERGE team set up a loud speaker system and fully secured the perimeter areas. The record clearly reflects that by at least 6:30 a.m., a reasonable person in Fisher’s position would have understood that, with such show of force, he was not free to leave.
In determining whether Fisher’s seizure was justified, we must consider whether exigent circumstances excused the need for a warrant. That inquiry, as noted above, requires consideration of both the facts of the exigency and whether there was sufficient time to secure a warrant. No evidence in the record suggests that, from the time Fisher threatened Officer Ryan until 6:30 a.m. when the MERGE team was in control, there was insufficient time to obtain a warrant before taking any official action to seize or arrest Fisher. Officer Ryan and Males did testify that they did not believe that a warrant was necessary, but that subjective testimony is irrelevant, because the Fourth Amend*1089ment inquiry is an objective one. United States v. McConney, 728 F.2d at 1199. The evidence did establish, however, that a district attorney was available twenty-four hours a day/seven days a week to assist the police in obtaining a warrant, telephon-ically3 or in person. The record also shows that a magistrate was on call twenty-four hours a day/seven days a week. Significantly, there was no explanation why any attempt to obtain an arrest warrant between 2:00 and 6:30 a.m. would have frustrated the officers’ on-scene objectives.
I fully understand the majority’s concern for the ability of police officers to have the freedom to make swift tactical decisions that, in the context of a highly dangerous and volatile armed standoff, could implicate the safety of officers and others. I also recognize that when police face an armed standoff, there may be a compelling need to use force to enter a person’s home immediately to alleviate a highly dangerous situation. However, the officers’ measured and deliberate responses to Fisher’s verbal and physical threats — summoning and waiting for both the tactical negotiator and the MERGE team — demonstrate that there was ample time to have at least made a good faith attempt to obtain a warrant. A review of this evidence leads to the inescapable conclusion that between 2:00 a.m. and the initial seizure at 6:30 a.m., there was ample time for the officers to obtain an arrest warrant. The subsequent arrest of Fisher was unlawful because the initial warrant-less seizure, unsupported by exigent circumstances, was unlawful. For this reason, I would affirm the district court’s Rule 50(b) judgment as a matter of law.
Because I would resolve this case on the basis of the evidence and our settled law, I see no need to “clarify our jurisprudence relating to the Fourth Amendment’s application to armed standoffs.” Maj. Op. at 1081. In my view, the majority reaches out to decide unnecessarily that, in the context of an armed standoff, a Fourth Amendment seizure is a continuous event and that any dissipation of the exigencies is not a factor in the analysis. In so holding, the majority virtually eliminates the urgency requirement of the exigent circumstances exception and thereby undermines, rather than clarifies, our Fourth Amendment jurisprudence.
For all of the above reasons, I respectfully dissent.
. Although I believe that the court need not reach the issue, I agree with Judge Reinhardt's compelling analysis and therefore join his dissent.
. The majority complains that the basis for my dissent is at odds "with Fisher’s own theory on appeal, and is contradicted by overwhelming evidence" in the record. Maj. Op. at 1075-76 n. 4. The thrust of Fisher's argument, however, was that the police never explained why there was insufficient time to obtain a warrant before they seized him. I recognize that Fisher states that "exigent circumstances” existed before 6:30 a.m. However, I do not understand Fisher’s argument to concede that during the early morning hours there was insufficient time to obtain a warrant before taking any action. The fact that Fisher posed a threat does not end the inquiry. The inquiry, as noted above, must also consider whether the circumstances required urgent action, such that a warrant could not have been obtained in time. On that score, my view of the case is entirely consistent with the district court's ruling and Fisher’s argument.
As for when Fisher was effectively seized for Fourth Amendment purposes, the majority asserts that there was sufficient evidence in the record for the jury to conclude that, in light of Fisher’s actions, he was seized sometime before 6:30 a.m. After outlining Fisher’s own behavior in the early morning hours of October 24, the majority concludes that "[a] reasonable person would not believe that his freedom remained unimpaired after engaging in such aggressive conduct toward the police officers surrounding his apartment.” Maj. Op. at 1075-76 n. 4.
This analysis of the moment of seizure departs substantially from our Fourth Amendment jurisprudence. "A person is seized if 'taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'” United States v. Washington, 490 F.3d 765, 769 (9th Cir.2007) (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)) (emphasis added). Our inquiry does not, as the majority suggests, seek to ascertain a person's view of the effect that his own conduct has upon the police. Rather, our inquiry, an objective one, "is designed to assess the coercive effect of police conduct” on that person. Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).
As I explain above, the conduct of the police in this case would not have led a reasonable person to believe that "he was not at liberty to ignore the police presence and go about his business” until the MERGE team arrived on the scene. See Bostick, 501 U.S. at 437, 111 S.Ct. 2382. In my view, no reasonable juror could conclude otherwise.
. Under California Penal Code section 817(c)(2), the police may apply for an arrest warrant using telephone and facsimile transmission equipment, or using telephone and electronic mail.