FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE ROBERT HUFF; MARIA
HUFF; and VINCENT HUFF,
No. 09-55239
Plaintiffs-Appellants,
D.C. No.
v.
2:07-cv-04114-
CITY OF BURBANK; DARIN RYBURN; FMC-AJW
EDMUNDO ZEPEDA; CHRIS ROBERTS;
OPINION
and FERNANDO MUNOZ,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, United States District Judge,
Presiding
Argued and Submitted
June 8, 2010—Pasadena, California
Filed January 11, 2011
Before: Alex Kozinski, Chief Circuit Judge,
Johnnie B. Rawlinson, Circuit Judge, and
Algenon L. Marbley, United States District Judge.*
Opinion by Judge Marbley;
Partial Concurrence and Partial Dissent by Judge Rawlinson
*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
615
HUFF v. CITY OF BURBANK 619
.
COUNSEL
Leo James Terrell (argued) and Erikson M. Davis, Law
Offices of Leo James Terrell, Beverly Hills, California, for
the plaintiffs-appellants.
Calvin House (argued), Gutierrez, Preciado & House, LLP,
Pasadena, California, for the defendants-appellees.
620 HUFF v. CITY OF BURBANK
OPINION
MARBLEY, District Judge:
Plaintiffs George, Maria, and Vincent Huff appeal the dis-
trict court’s judgment in favor of four officers who entered
their home without a warrant. For the reasons below, we find
that only two of the four officers were entitled to qualified
immunity.
I. BACKGROUND
On June 1, 2007, the four officers responded to a call from
Bellarmine-Jefferson High School. At Bellarmine, they
learned of a rumor about a letter that said that Vincent, a stu-
dent there, was going to “shoot up” the school. The principal,
Sister Milner, told Sergeant Ryburn and Officer Zepeda that
Vincent had not been at school in two days, that she was con-
cerned about the threat and the safety of her students, that
some parents had kept their students home, and that she
wanted the police to investigate. After conducting interviews
with Sister Milner and two students, the officers could not
confirm the existence of any threatening letter.
The officers decided to go to the home of George; Maria,
his wife; and Vincent, their son, to interview the family and
continue their investigation. Before leaving Bellarmine, the
officers asked Sister Milner to make sure that no one con-
tacted the Huffs to inform them that the Burbank Police were
on the way to their home. When the officers arrived in the
vicinity of the Huff home, they parked their cars away from
the residence so that the Huffs would not see them approach-
ing.
Upon arrival at the Huff residence, Zepeda knocked on the
door and announced that the officers were with the Burbank
Police Department. When no one responded, Ryburn called
the home telephone number, and though the officers could
HUFF v. CITY OF BURBANK 621
hear the telephone ringing inside the house, no one answered.
Ryburn then called Maria on her cell phone, which she
answered. Ryburn identified himself and indicated he wanted
to talk to Maria about her son Vincent. Maria then hung up
the phone.
Two minutes later Maria and Vincent came out of the
house and stood on the front steps in front of Ryburn and
Zepeda. Zepeda told Vincent that the Officer Defendants were
there to talk about some threats at the school, to which Vin-
cent replied “I can’t believe you’re here for that.” (ER 78:22-
23.) The officers concede that when they encountered Vincent
outside of the Huff residence, they did not have probable
cause to enter the home.3 (1 RT 44:3-9.) Ryburn approached
Maria and asked if they could go inside the house to talk. She
said, “No,” because the Officer Defendants did not have a
warrant. (ER 78:24-25; 2 RT 44:1-8, 96:18-97:8.) Ryburn
then asked Maria if there were any guns in the home. Maria
testified that she responded that she would go get her hus-
band. Maria then turned around and went into the house.
3
Officer Roberts testified explicitly at the hearing that when he followed
Sergeant Ryburn into the house, he did not believe that they had probable
cause. He testified as follows:
Q: And you were going inside the Huff residence, you never,
ever saw any criminal conduct; isn’t that true?
A Correct.
Q: You never saw anything that gave you probable cause that
any of your fellow officers were about to be injured or in
danger of their lives; isn’t that true?
A: Correct.
(1 RT 44:3-9.) Sergeant Ryburn testified that when he left Bell-Jeff for the
Huff residence, he had “reasonable suspicion to detain Vincent Huff.” (2
RT 9:18-21.) Reasonable suspicion does not rise to the level of probable
cause. See Alabama v. White, 496 U. S. 325, 330 (1990) (“Reasonable sus-
picion is a less demanding standard than probable cause . . .”). Finally, at
oral argument, defense counsel conceded that the Officer Defendants did
not have probable cause when they arrived at the Huff residence or when
Mrs. Huff entered her residence.
622 HUFF v. CITY OF BURBANK
Ryburn followed Maria into the house. Ryburn acknowl-
edges that, at this point, Maria was not detained or arrested,
and that she was free to leave from where she had been stand-
ing and speaking with Ryburn and Zepeda. Vincent then
entered the residence, followed by Zepeda. Zepeda entered
the home because of “officer safety” concerns. (ER 79:3-4.)
Since the officers were there to investigate threats to shoot, he
did not want Ryburn to enter the house alone. The other two
officers, Munoz and Roberts, had been standing near the side-
walk, unable to hear any of the conversation between Maria,
Vincent, Ryburn, and Zepeda. After Ryburn and Zepeda
entered the Huff residence, Munoz and Roberts assumed that
Maria and Vincent had given consent and entered the home.
After entering the Huff residence, the officers remained in
the living room. George entered the room and challenged the
authority of the police to be in his home. The officers
remained inside the Huff home for five to ten minutes, talking
with the Huff family. The officers satisfied themselves that
the rumors about the threats at Bellarmine were untrue. They
then left the Huff residence and returned to the school to
report their conclusions. At no time while the officers were in
the Huff home did they conduct any search of George, Maria,
Vincent, or any property.
After the officers returned to Bellarmine, Ryburn suggested
to Sister Milner that she send out a notice to the parents of
Bellarmine’s students informing them that there was no such
threat or letter. As a result of speaking with Ryburn about the
morning’s events, Sister Milner sent a letter to parents, which
explained that there was no truth to the rumor about a student
threatening to shoot anyone.
The Huffs initiated this action, which sought compensatory
and punitive damages, alleging that their constitutional rights
had been violated when the police entered their home. After
holding a two-day bench trial, the district court held that exi-
gent circumstances permitted the police’s warrantless entry
HUFF v. CITY OF BURBANK 623
into the Huff residence and that the officers were entitled to
qualified immunity. The Huffs appeal.
II. LAW AND ANALYSIS
A. Findings of Fact
The Federal Rules of Civil Procedure require that the dis-
trict court make findings of fact and conclusions of law in all
cases tried without a jury. Fed. R. Civ. P. 52(a). The factual
findings must be sufficient to indicate the factual basis of the
district court’s ultimate conclusions. Kelley v. Everglades
Drainage Dist., 319 U.S. 415, 422 (1943); Vance v. Am. Haw.
Cruises, Inc., 789 F.2d 790, 792 (9th Cir. 1986). It is also not
“necessary that the trial court make findings asserting the neg-
ative of each issue of fact raised.” Carr v. Yokohama Specie
Bank, Ltd., of San Francisco, 200 F.2d 251, 255 (9th Cir.
1953). The district court’s findings should be “explicit enough
to give the appellate court a clear understanding of the basis
of the trial court’s decision, and to enable it to determine the
ground on which the trial court reached its decision.” Alpha
Distrib. Co. of Cal. v. Jack Daniel Distillery, 454 F.2d 442,
453 (9th Cir. 1972) (citing Irish v. United States, 225 F.2d 3,
8 (9th Cir. 1955).
The district court’s findings of fact are reviewed under the
clearly erroneous standard. Zivkovic v. S. Cal. Edison Co.,
302 F.3d 1080, 1088 (9th Cir. 2002). This review for clear
error is “significantly deferential,” and the reviewing court
“must accept the district court’s factual findings absent a ‘def-
inite and firm conviction that a mistake has been commit-
ted.’ ” Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002)
(quoting United States v. Syrax, 235 F.3d 422, 427 (9th Cir.
2000). This Court may not reverse the district court even
though we may be convinced we would have weighed the evi-
dence differently had we been the trier of fact. Phoenix Eng’g
and Supply Inc. v. Universal Elec. Co., Inc., 104 F.3d 1137,
624 HUFF v. CITY OF BURBANK
1141 (9th Cir. 1997) (citing Anderson v. Bessemer City, N.C.,
470 U.S. 564, 674 (1985)).
The Huffs argue that the district court erred in several find-
ings of fact. First, the Huffs assert that the district court did
not resolve conflicting testimony regarding: (1) whether
Maria knew why the police were at her home before she went
outside; (2) why Maria hung up her cell phone on Ryburn
before proceeding outside to speak with the police; (3)
whether Maria answered Ryburn’s questions about whether
there were any guns inside the Huff residence; (4) whether
Maria told the officers she was going back into the house to
get her husband; and (5) Maria’s whereabouts upon returning
inside the Huff residence. Second, the Huffs contend that the
district court did not state that it was undisputed that Maria
was free to return to her home. Third, the Huffs believe the
district court erroneously failed to state why Ryburn went into
the Huff residence.
The district court was not clearly erroneous in its findings
such that reversal by this Court would be appropriate. That we
may have weighed the testimony of the witnesses and other
evidence in another manner, thus reaching different findings
of fact, is not a proper basis for reversal. Phoenix Eng’g and
Supply Inc., 104 F.3d at 1141. The Federal Rules of Civil Pro-
cedure require “the reviewing court [to] give due regard to the
trial court’s opportunity to judge the witnesses’ credibility.”
Fed. R. Civ. P. 52(a)(6). Accordingly, we’ve held that
“[w]here there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly errone-
ous.” United States v. Working, 224 F.3d 1093, 1102 (9th Cir.
2000) (en banc) (quoting Anderson v. City of Bessemer, 470
U.S. 564, 573-74 (1985)). Here, the district court needed only
to find the facts sufficient to indicate the basis for its ultimate
legal conclusions. The district court was not required to find
all possible facts, or to state explicitly why it had chosen to
believe the testimony of the officers over Maria. Additionally,
because the court found that exigent circumstances justified
HUFF v. CITY OF BURBANK 625
the warrantless entry into the Huff residence, the court was
not required to state Ryburn’s reason for entering the home.
Accordingly, the district court’s findings of fact are not
clearly erroneous.
B. Fourth Amendment Violation
[1] The Fourth Amendment provides that “[t]he right of
the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated.” U.S. CONST. amend. IV. Physical entry into the
home is “the chief evil against which the wording of the
Fourth Amendment is directed.” United States v. U.S. Dist.
Court, 407 U.S. 297, 313 (1972); see also Murdock v. Strout,
54 F.3d 1437, 1440 (9th Cir. 1995) (“[T]he protection of indi-
viduals from unreasonable government intrusion into their
houses remains at the very core of the Fourth Amendment.”).
Therefore, “[t]o safeguard the home, we normally require a
warrant before the police may enter.” Frunz v. City of
Tacoma, 468 F.3d 1141, 1142-43 (9th Cir. 2006). Without a
search warrant, the “search of a house is per se unreasonable,
and absent exigency or consent, warrantless entry into the
home is impermissible under the Fourth Amendment.” United
States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990) (inter-
nal citation omitted). The existence of exigent circumstances
is a mixed question of law and fact that we review de novo.
United States v. Reilly, 224 F.3d 986, 991 (9th Cir. 2000).
In this case, the district court found that “a constitutional
violation occurred” when “the officers made a warrantless
entry into plaintiffs’ home,” and acknowledged that “[a]n
exception to the warrant requirement is the existence of exi-
gent circumstances.” (ER 79:23-25, 80:24-25.) It is not clear
whether the district court actually found that there were exi-
gent circumstances present to justify entry into the home or if
the district court merely found that the officers reasonably
believed that exigent circumstances were present such that
626 HUFF v. CITY OF BURBANK
they are entitled to qualified immunity despite their Fourth
Amendment violation. The threshold issue before this Court,
therefore, is whether there were exigent circumstances that
justified the warrantless entry into the Huff home.
1. Exigent Circumstances of Officer Safety
[2] Because the Officer Defendants had no warrant to
search the Huff home, and were not given consent to enter the
residence by either Maria or Vincent, their entry into the
house is constitutionally impermissible unless exigent circum-
stances are present. See id. There are exigent circumstances to
justify a warrantless entry by police officers into a home if the
officers have a reasonable belief that their entry is “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.” Fisher v. City of San Jose, 558 F.3d
1069, 1075 (9th Cir. 2009). We have stated that “the exigent
circumstance does not, however, relieve the police of the need
to have probable cause.” United States v. Johnson, 256 F.3d
895, 905 (9th Cir. 2001) (en banc). In Johnson, we stated that
“when the government relies on the exigent circumstances
exception, it . . . must satisfy two requirements: first, the gov-
ernment must prove that the officer had probable cause to
search the house; and second, the government must prove that
exigent circumstances justified the warrantless intrusion.” Id.;
see also United States v. Ojeda, 276 F.3d 486, 488 (9th Cir.
2002) (per curiam).
The Supreme Court has stated that “the police bear a heavy
burden when attempting to demonstrate an urgent need that
might justify warrantless searches or arrests.” Welsh v. Wis-
consin, 466 U.S. 740, 749-50 (1984); see also Minnesota v.
Olson, 495 U.S. 91, 100 (1990) (“[I]n the absence of hot pur-
suit there must be at least probable cause to believe that one
or more of the other factors justifying the entry were present
. . . .”). We have further explained that police officers can
HUFF v. CITY OF BURBANK 627
meet their heavy burden only by showing “specific and
articulable facts” that justify a finding of exigent circum-
stances. LaLonde v. Cnty. of Riverside, 204 F.3d 947, 957 (9th
Cir. 2000) (quoting United States v. Shephard, 21 F.3d 933,
938 (9th Cir. 1994)). Mere speculation is not enough to estab-
lish exigent circumstances. See United States v. Suarez, 902
F.2d 1466, 1468 (9th Cir. 1990) (finding that speculation
about the presence of drugs on the premises and the danger
of their destruction is not sufficient to show exigent circum-
stances); United States v. Driver, 776 F.2d 807, 810 (9th Cir.
1985) (“[T]his burden is not satisfied by leading a court to
speculate about what may or might have been the circum-
stances.”). The Supreme Court has recognized only a few
such conditions that constitute exigent circumstances. See,
e.g., Michigan v. Tyler, 436 U.S. 499, 509 (1978) (ongoing
fire); United States v. Santana, 427 U.S. 38, 42-43 (1976) (hot
pursuit of a fleeing felon); Warden v. Hayden, 387 U.S. 294,
298-99 (1967) (same); Schmerber v. California, 384 U.S. 757,
770-71 (1966) (destruction of evidence).
[3] In addition to exigency, officers must have probable
cause. “Officers have probable cause for a search when ‘the
known facts and circumstances are sufficient to warrant a man
of reasonable prudence in the belief that contraband or evi-
dence of a crime will be found.’ ” United States v. Henderson,
241 F.3d 638, 648 (9th Cir. 2000) (quoting Ornelas v. United
States, 517 U.S. 690, 696 (1996)). Probable cause is deter-
mined based on “the totality of the circumstances known to
the officers at the time.” United States v. Alaimalo, 313 F.3d
1188, 1193 (9th Cir. 2002).
[4] Here, the police did not have, nor did the district court
find, probable cause to believe that an offense had been or
was being committed.4 See United States v. Lopez, 482 F.3d
4
The Officer Defendants argue that the constitutional requirements of
probable cause and a warrant exist only where an intrusion results in a
deprivation of liberty or property. The Officer Defendants take the posi-
628 HUFF v. CITY OF BURBANK
1067, 1072 (9th Cir. 2007) (outlining the probable cause stan-
dard requiring that officers “have knowledge or reasonably
trustworthy information sufficient to lead a person of reason-
able caution to believe that an offense has been or is being
committed by the person being arrested”). And “Supreme
Court and Ninth Circuit cases unequivocally hold that proba-
ble cause is a precondition for any warrantless entry to seize
a person in his home.” LaLonde, 204 F.3d at 954. Indeed, the
police testified that they did not think a crime had been or was
being committed and that they had no reason to detain Maria
or Vincent. The only arguable way we could find exigent cir-
cumstances would be to find that Maria’s behavior “would
cause a reasonable person to believe that entry . . . was neces-
sary to prevent physical harm to the officers or other per-
sons.” United States v. McConney, 728 F.2d 1195, 1199 (9th
Cir. 1984).
[5] Additionally, there were no exigent circumstances. The
Officer Defendants were not pursuing a fleeing felon. The
Officer Defendants were not trying to prevent the destruction
of contraband or evidence. No crime had been committed. No
crime was in progress.
Here, the district court held:
tion that where there is merely an intrusion, “it should be sufficient that
exigent circumstances exist.” Id. The Supreme Court has not embraced the
view that the existence of a constitutional violation should be determined
by the events that happen after police officers make a warrantless entry
into a home. See Payton v. New York, 445 U.S. 573, 589-90 (1980) (“But
the critical point is that any differences in the intrusiveness of entries to
search and entries to arrest are merely ones of degree rather than kind . . .
[because] the Fourth Amendment has drawn a firm line at the entrance to
the house.”); see also LaLonde, 204 F.3d at 954-55 (“Payton specifically
reversed the lower court opinion which had relied on the premise that a
warrantless entry to seize a person within the home can be held to a lower
standard than a warrantless entry to search and seizure property within a
home.”).
HUFF v. CITY OF BURBANK 629
[T]he officers testified that a number of factors led
them to be concerned for their own safety and for the
safety of other persons in the residence: the unusual
behavior of the parents in not answering the door or
the telephone; the fact that Mrs. Huff did not inquire
about the reason for their visit or express concern
that they were investigating her son; the fact that
they hung up the telephone on the officer; the fact
that she refused to tell them whether there were guns
in the house; and finally that she ran back into the
house while being questioned. That behavior, com-
bined with the information obtained at the school —
that Vincent was a student who was a victim of bul-
lying, who had been absent from school for two
days, and who had threatened to shoot up the school
— led the officers to believe that there could be
weapons inside the house, and that family members
or the officers themselves were in danger.
(ER 81:4-15.)
[6] These facts relied upon by the district court in its legal
conclusions amount to mere speculation. They do not satisfy
the heavy burden required for a finding of exigent circum-
stances. That the Huffs did not answer their door or telephone
may be “unusual,” but it did not create exigent circumstances.
Hopkins v. Bonvicino, 573 F.3d 752, 765 (9th Cir. 2009)
(“[N]othing requires an individual to answer the door in
response to a police officer’s knocking.”). The district court
was incorrect in finding that Maria Huff’s failure to inquire
about the reason for the officers’ visit, or her reluctance to
speak with the officers and answer questions, were exigent
circumstances. “[T]o the extent that the officers reasonably
perceived [Maria] to be antagonistic, they were still not at lib-
erty to enter [her home] under these circumstances.” LaLonde,
204 F.3d at 957 n.16. Nothing in the district court’s findings
of fact states that Maria did not inquire about the reason for
the officers’ visit or express concern that they were investigat-
630 HUFF v. CITY OF BURBANK
ing her son. Nothing in the district court’s findings of fact
indicates that Maria was not free to leave and return to her
home, or that any of the officers had indicated that she was
either required to answer their questions or restricted from
returning to the inside of her house. Additionally, Maria did
answer her cell phone when Ryburn called, spoke to him on
the telephone, and went outside with her son Vincent upon
learning they were present at her residence. She was under no
obligation to invite the officers into her home. Indeed, our
Constitution protects her decision to refuse the police entry
into her home when they did not possess a warrant. See
Silverman v. United States, 365 U.S. 505, 511 (1961) (“At 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.”).
[7] Further, “the officers’ assertion of a potential threat to
their safety must be viewed in the context of the underlying
offense.” LaLonde, 204 F.3d at 957 n.16. Here, there was no
underlying offense; the officers were investigating rumors of
threats. We have stated that:
[t]he mere fact that a person owns a rifle and does
not like law enforcement officials does not in itself
allow police officers to enter the person’s home and
seize him simply because he is unwilling to step into
the public domain for questioning, even if probable
cause exists to believe that some offense has been
committed.
Id. In LaLonde, we found no exigent circumstances where
probable cause existed; a fortiori, we should not find exigent
circumstances where it is undisputed that no probable cause
existed. It is also significant that Munoz and Roberts, two
officers fully briefed on the background information preced-
ing the officers’ visit to the Huff home and present at the resi-
dence during the entire incident, entered the house because
they believed they had been given consent, and not because
HUFF v. CITY OF BURBANK 631
of any perceived exigency. Nor did Ryburn or Zepeda com-
municate any exigency to Munoz and Roberts. When the offi-
cers entered the Huff home, they committed a Fourth
Amendment violation. The district court was incorrect in find-
ing that exigent circumstances existed.
Finally, we note that although the officers do not specifi-
cally argue that their warrantless entry was justified by emer-
gency circumstances, we would reject such a claim. The
emergency doctrine applies when police officers reasonably
believe entry is necessary to “protect or preserve life or avoid
serious injury.” Mincey v. Arizona, 437 U.S. 385, 392 (1978).
This exception may appear to fit better the facts of this case
because the officers need not have probable cause to show a
crime has been or is about to be committed; instead, “[t]here
must be some reasonable basis, approximating probable
cause, to associate the emergency with the area or place to be
searched.” Hopkins, 573 F.3d at 764 n.5. Here, however, there
was no “objectively reasonable basis for concluding that there
[wa]s an immediate need to protect others or themselves from
serious harm.” United States v. Snipe, 515 F.3d 947, 951-52
(9th Cir. 2008). Maria merely asserted her right to end her
conversation with the officers and returned to her home.
Therefore, as discussed above, any belief that the officers or
other family members were in serious, imminent harm would
have been objectively unreasonable.
2. Qualified Immunity
Qualified immunity can shield government officials from
individual civil liability where their conduct “does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v. Fitzger-
ald, 457 U.S. 800, 818 (1982). We use a two-step analysis to
determine whether the facts show that: (1) the conduct of the
officers violated a constitutional right; and (2) the right that
was violated was clearly established at the time of the viola-
tion. Saucier v. Katz, 533 U.S. 194, 201 (2001); Hopkins, 573
632 HUFF v. CITY OF BURBANK
F. 3d at 762. Here, it has been established that the Officer
Defendants committed a Fourth Amendment violation
because there were no exigent circumstances justifying their
entry into the Huff home.
a. Clearly Established Law
[8] Next we must determine whether the right which the
Officer Defendants violated was clearly established at the
time of the violation. This inquiry, whether the law was
clearly established, is a pure question of law for the court to
decide. Romero v. Kitsap Cnty., 931 F.2d 624, 628 (9th Cir.
1991); see also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
If the officers violated such a right, but it was not clearly
established, then they are entitled to immunity. Hopkins, 573
F.3d at 762. A right is clearly established if a reasonable offi-
cer would know that his conduct was unlawful in the situation
he confronted. Headwaters Forest Defense v. Cnty. of Hum-
boldt, 276 F.3d 1125, 1129 (9th Cir. 2002); see also Anderson
v. Creighton, 483 U.S. 635, 641 (1987).
[9] We have explicitly stated that “with respect to the lack
of probable cause and the lack of exigent circumstances —
the absence of either of which would preclude the officers’
reliance on the exigency exception — the law as to both was
clearly established in 2003.” Hopkins, 573 F.3d at 772. The
dissent relies on Brigham City v. Stuart, 547 U.S. 398 (2006),
to argue that it was not clearly established law that a warrant-
less entry predicated on a perceived emergency but lacking
probable cause violates the Fourth Amendment. In so doing,
the dissent mistakenly conflates the emergency doctrine,
which requires an objectively reasonable basis, with the exi-
gent circumstances doctrine, which requires probable cause as
well as a reasonable belief that entry is necessary. The Ninth
Circuit has not merged these two doctrines; in fact, we have
been explicit in recognizing their contours and their autono-
mous applications.5 See, e.g., Hopkins, 573 F.3d at 763
5
The dissent implies that we should abandon our long-standing rule dis-
tinguishing between the emergency and exigency exceptions to the war-
HUFF v. CITY OF BURBANK 633
(explaining that the emergency doctrine derives from the
police officers’ “community caretaking function” whereas the
exigent circumstances doctrine derives from the police offi-
cers’ “investigatory function”). In Brigham City, the Supreme
Court confirmed the standard for whether police may enter a
home without a warrant in accordance with the emergency
doctrine: Officers must have “an objectively reasonable basis”
to conclude that an emergency is occurring and immediate
action is necessary to protect themselves or others from seri-
ous, imminent harm. Brigham City, 547 U.S. at 400; see also
Michigan v. Fisher, 130 S. Ct. 546, 548 (2009) (per curiam)
(characterizing Brigham City as an “emergency aid excep-
tion” case). As discussed above, this exception does not apply
to the present case. Brigham City does not, as the dissent sug-
gests, disturb the requirement that probable cause is necessary
when a warrantless entry is based on exigent circumstances.
This was clearly established law when the officers entered the
Huff residence, and it is the law that continues to protect the
privacy and sanctity of the home today. See United States v.
rant requirement in favor of approaches adopted by the Sixth and Tenth
Circuits, which the dissent reads as dispensing with probable cause in
favor of the objectively reasonable basis standard. See United States v.
Huffman, 461 F.3d 777 (6th Cir. 2006); Armijo v. Peterson, 601 F.3d 1065
(10th Cir. 2010). In both of these cases, the courts expanded the scope of
Brigham City over vigorous dissents. Neither case contains jurisprudential
explanations or prudential concerns sufficient to justify why it is now nec-
essary for us to merge these two distinct doctrines and dispense with the
firmly-established rule announced by the Supreme Court and followed by
every other circuit that the Fourth Amendment requires both probable
cause and exigent circumstances, including safety, for a warrantless entry
into the home. See Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (per
curiam); Estate of Bennett v. Wainwright, 548 F.3d 155, 169 (1st Cir.
2008); Loria v. Gorman, 306 F.3d 1271, 1283 (2d Cir. 2002); Estate of
Smith v. Marasco, 318 F.3d 497, 518 (3d Cir. 2003); United States v.
Moses, 540 F.3d 263, 269-70 (4th Cir. 2008); United States v. Newman,
472 F.3d 233, 236 (5th Cir. 2006); United States v. Venters, 539 F.3d 801,
806-07 (7th Cir. 2008); United States v. Clarke, 564 F.3d 949, 959 (8th
Cir. 2009); Bates v. Harvey, 518 F.3d 1233, 1245 (11th Cir. 2008); In re
Sealed Case 96-3167, 153 F.3d 759, 764 (D.C. Cir. 1998).
634 HUFF v. CITY OF BURBANK
Struckman, 603 F.3d 731, 739 (9th Cir. 2010). Accordingly,
when we consider the actions of the officers “in the light of
pre-existing law[,] the unlawfulness [is] apparent.” Anderson,
483 U.S. at 640. The issue then becomes whether a reasonable
officer would have known the conduct of Ryburn, Zepeda,
Roberts, and Munoz in this situation was unlawful.
b. Objective Reasonableness
The reasonableness inquiry is objective, evaluating
“whether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Graham v.
Connor, 490 U.S. 386, 397 (1989).
i. Roberts and Munoz
[10] The district court found that Roberts and Munoz
entered the Huff residence because they believed they had
been given consent. Though Roberts and Munoz were mis-
taken in their beliefs, their actions were reasonable under the
circumstances. They were not party to the conversations
occurring between Ryburn, Zepeda, Maria, and Vincent. They
entered the Huff home only after their colleagues Ryburn and
Zepeda. No one communicated to them the basis for entry or
indicated to them that they should remain outside. Under
those conditions, a reasonable officer may have believed,
though mistakenly, that he and his fellow officials had been
given consent to enter the home. Roberts and Munoz are enti-
tled to qualified immunity for their warrantless entry into the
Huff residence in violation of the Fourth Amendment.
The Huffs argue that even if there were exigent circum-
stances to justify entry into their home, the officers violated
their Fourth Amendment rights by remaining in their home
once they realized that no exigent circumstances existed. But
“officers [are] not required to periodically reassess whether
the exigency persisted throughout” the duration of a search.
HUFF v. CITY OF BURBANK 635
Fisher, 558 F.3d at 1077. Here, Roberts and Munoz’s remain-
ing in the home for five to ten minutes “was merely a continu-
ation of the initial entry,” and we therefore decline to hold
them personally liable for failing to leave. Id. (quoting United
States v. Echegoyen, 799 F.2d 1271, 1280 (9th Cir. 1986)).
ii. Ryburn and Zepeda
[11] The district court found that Zepeda entered the Huff
home because of “officer safety concerns” and that Ryburn
faced “a number of factors” that led to safety concerns. (ER
79:3-5, 81:4-5.) Both Zepeda and Ryburn knew that they were
at the Huff house to investigate alleged threats that had been
made by Vincent. They were aware that no crime had been
committed at the Huff home. Both Zepeda and Ryburn knew
that no crime was in progress at the Huff home. Both Zepeda
and Ryburn were aware that they did not have probable cause
to stop or detain Maria or Vincent. Both Zepeda and Ryburn
knew that they had not been given consent to enter the Huff
residence. Neither Zepeda nor Ryburn knew a gun to be pres-
ent at the Huff home, ever saw a gun, or was ever informed
of the presence of a gun. A reasonable officer confronted with
this situation may have been frustrated by having a parent
refuse them entry, but would not have mistaken such a refusal
or reluctance to answer questions as exigent circumstances.
Thus, Ryburn and Zepeda are not entitled to qualified immu-
nity for their warrantless entry into the Huff residence in vio-
lation of the Fourth Amendment.
III. CONCLUSION
For the foregoing reasons, we AFFIRM in part and
REVERSE in part the district court’s judgment and
REMAND the case.6
6
Each party shall bear its own costs on appeal.
636 HUFF v. CITY OF BURBANK
Rawlinson, Circuit Judge, concurring in part, and dissenting
in part:
I would pose the issue in this case as whether it was clearly
established law that a warrantless entry predicated on a per-
ceived emergency violates the Fourth Amendment despite the
lack of probable cause. In my view, that point of law was not
clearly established, and should result in our affirming the
grant of qualified immunity to all the officers who are defen-
dants in this case.
Unquestionably, the discrete incident that precipitated the
entry in this case was Mrs. Huff’s response to the question
regarding whether there were guns in the house. The majority
recites a sanitized account of this event, stating that Mrs. Huff
“went into the house” and “testified that she responded that
she would go get her husband.” Majority Opinion, pp. 621-22.
However, the district court’s findings of fact, which the
majority concedes must be credited, see Majority Opinion, p.
624, differs markedly from the majority’s rendition. Indeed,
the district court found that when asked whether there were
guns in the house, rather than responding, Mrs. Huff turned
and ran into the house. Mrs. Huff’s precipitous departure
understandably prompted safety concerns. Sergeant Rayburn
testified as follows regarding his actions after Mrs. Huff
declined the suggestion to go inside the home:
Q. So when she said “no,” did you decided [sic] to
start questioning her as if you were inside the
house?
A. Yes. And that’s why I asked if there was any
weapons in the house.
Q. In targeted violence situations, does that ques-
tion have a particular meaning to you?
A. Absolutely because of, again, the threat that he
was going to blow up or shoot up the school. I
HUFF v. CITY OF BURBANK 637
wanted to make sure neither one of them could
access any weapons from inside the house, and
that’s where they normally get the weapons
from is from either their parents or relatives or
friends.
Q. Did Mrs. Huff say “no” to your question about
whether there were guns in the house?
A. She didn’t say anything at all. She just turned
around and went into the house.
Q. Did she say she was going to get her husband?
A. No.
Q. When Mrs. Huff turned and went into the
house, were you concerned?
A. Absolutely.
Q. Were you scared?
A. I was scared because I didn’t know what was in
that house and, again, I’ve seen too many offi-
cers killed in shootings. I did not want one of us
to be injured. So I went in and followed her in
the house.
Q. Did you go into the house to search for guns?
A. No.
Q. Why did you go into the house?
A. Because I didn’t want her to access a weapon or
Vincent Huff accessing a weapon.
638 HUFF v. CITY OF BURBANK
Q. Why didn’t you just grab her? Stop her?
A. It all happened so quick. As soon as I asked her
about the weapons, she turned and ran into the
house. I didn’t have a chance to. Caught me by
surprise.
In my view, the cases cited by the majority that address cir-
cumstances where law enforcement has targeted a person or
an item for search or seizure are not the appropriate guide-
posts for our analysis. I would look instead to those cases that
specifically address the scenario where officer safety concerns
prompted the entry.
In Brigham City v. Stuart, 547 U.S. 398 (2006), the United
States Supreme Court was called upon to “consider whether
police may enter a home without a warrant when they have
an objectively reasonable basis for believing that an occupant
is seriously injured or imminently threatened with such inju-
ry.” Id. at 400. The Supreme Court “conclude[d] that they
may.” Id.
In its analysis, the Supreme Court focused on “the appro-
priate Fourth Amendment standard governing warrantless
entry by law enforcement in an emergency situation.” Id. at
402 (citations omitted). Without mentioning a probable cause
requirement, the Supreme Court upheld the warrantless entry
because “the officers had an objectively reasonable basis for
believing “that an emergency situation existed.” Id. at 406.
The Supreme Court’s analysis in Brigham City is consistent
with its earlier pronouncement in Georgia v. Randolph, 547
U.S. 103 (2006). Randolph involved the warrantless search of
a shared dwelling over the express refusal of a co-resident of
the dwelling. See id. at 106. Although the Supreme Court
determined that there was no valid consent by Randolph, and
the results of the search were “unreasonable and invalid as to
him,” id., in responding to the dissent’s argument that the rul-
HUFF v. CITY OF BURBANK 639
ing would “shield[ ] spousal abusers and other violent co-
tenants,” id. at 117 (citation omitted), the majority observed
that:
[I]t would be silly to suggest that the police would
commit a tort by entering, say, to give a complaining
tenant the opportunity to collect belongings and get
out safely, or to determine whether violence (or
threat of violence) has just occurred or is about to (or
soon will) occur . . . Thus, the question whether the
police might lawfully enter over objection in order to
provide any protection that might be reasonable is
easily answered yes . . .
Id. at 118 (citation omitted).
At least one other circuit had applied the analysis articu-
lated in Brigham City to uphold a warrantless search as of
2007, when this challenged entry occurred. In United States
v. Huffman, 461 F.3d 777, 780 (6th Cir. 2006), there was a
report of shots fired. Police were dispatched to the scene, and
observed bullet holes and glass. See id. The officers did not
observe any blood or signs of injury. See id. After there was
no response to the officers’ knock and announcement of their
presence, the officers entered the residence. See id. Huffman
was asleep in a chair with a fully loaded assault rifle on a
table in front of him. See id. Huffman was arrested and
charged with firearm violations. See id. Huffman’s motion to
suppress on the basis of a Fourth Amendment violation was
denied. See id. at 781. The district court concluded that the
facts “were sufficient to establish exigent circumstances justi-
fying entry into the residence without a warrant.” Id.
In discussing the exigent circumstances exception to the
warrant requirement, the Sixth Circuit cited Brigham for the
proposition that there are “four situations that may give rise
to exigent circumstances: 1) pursuit of a fleeing felon, 2)
imminent destruction of evidence, 3) the need to prevent a
640 HUFF v. CITY OF BURBANK
suspect’s escape, and 4) a risk of danger to the police or oth-
ers.” Id. at 782 (citation omitted) (emphasis added). The Sixth
Circuit explained that “to satisfy the exigent circumstances
exception [the government] must show that there was a risk
of serious injury posed to the officers or others that required
swift action. Id. (citation omitted). The Sixth Circuit, as was
the case in Brigham City, did not mention probable cause.
Although the more dated cases cited by the majority import
a probable cause requirement into the exigent circumstances
analysis, Brigham City, Huffman and other more recent cases
discussing exigent circumstances do not. See Michigan v.
Fisher, 130 S. Ct. 546 (2009) (describing the Brigham City
holding as embodying the “emergency aid exception,” requir-
ing “only an objectively reasonable basis for believing that a
person within the house is in need of immediate aid[.]” Id. at
548 (citations, alteration and internal quotation marks omit-
ted); see also United States v. Snipe, 515 F.3d 947 (9th Cir.
2008) (“Considering the totality of the circumstances, law
enforcement must have an objectively reasonable basis for
concluding that there is an immediate need to protect others
or themselves from serious harm.” Id. at 951-52 (emphasis
added); Armijo v. Peterson, 601 F.3d 1065, 1071 (10th Cir.
2010) (“[T]he exigent circumstances exception permits war-
rantless home entries when officers reasonably believe that
some actor or object in a house may immediately cause harm
to persons or property not in or near the house.” (Emphasis in
the original).
In any event, as of 2007 when the events in this case
occurred, at a minimum it was unclear whether a warrantless
entry into a home by police officers who feared for their
safety violated the Fourth Amendment. Under the rationale
articulated in Brigham City, Randolph and Huffman, a police
officer could have reasonably believed that he was justified in
making a warrantless entry to ensure that no one inside the
house had a gun after Mrs. Huff ran into the house without
answering the question of whether anyone had a weapon. See,
HUFF v. CITY OF BURBANK 641
e.g., United States v. Paopao, 469 F.3d 760, 766 (9th Cir.
2006), as amended (“Depending on the circumstances, the
exigencies of a situation may make it reasonable for officers
to enter a home without a warrant in order to conduct a pro-
tective sweep.”) (quoting United States v. Cavely, 318 F.3d
987, 995-96 (10th Cir. 2003).) Accordingly, I conclude that it
was not clearly established that the actions taken by Sergeant
Ryburn and Officer Zepeda violated the Fourth Amendment.
As a result, I would affirm the district court’s decision grant-
ing qualified immunity to all four officers involved in the
incident.
I, therefore, concur in that portion of the opinion holding
that Officers Roberts and Munoz were entitled to qualified
immunity. I respectfully dissent from that portion of the opin-
ion holding that Sergeant Ryburn and Officer Zepeda were
not entitled to qualified immunity.