Next Time You Have 60 Officers On Scene, Send Two Rookies To Get An Arrest Warrant

FISHER v. CITY OF SAN JOSE, USCA-9 No. 04-16095, 2007 U.S.App. LEXIS 860, appeal from USDC-CAND, before Thompson, Berzon, and Callahan, Circuit Judges, opinion by Berzon, dissent by Callahan filed 16 Jan 2007.

LONG STORY SHORT: Armed suspect barricaded in his home was effectively arrested in his home because that is where he decided to submit to calls to surrender after 12 hours, but since so many officers were present for so long, a warrant should have been obtained. Binding in AK, AZ, CA, HI, ID, MT, NV, OR, WA.

FACTS: Security Officer Serrano was investigating a noise complaint at an apartment complex just before midnight, 23 October 1999. While walking past the apartment underneath the one complained about, SO Serrano happened to see that Plaintiff was at home, and asked Plaintiff to come outside, intending to find out what Plaintiff knew about the noise. Plaintiff appeared at his door, showing signs of intoxication and with a World War 2 rifle in hand. SO Serrano asked Plaintiff about the noise, but Plaintiff did not respond well to those questions and instead volunteered his opinions on the Second Amendment. It was not clear from subsequent testimony whether Plaintiff pointed the rifle at SO Serrano, but SO Serrano was uncomfortable with an armed drunk. He went to his supervisor, who called police.

Sergeant Ryan and other officers of San Jose PD responded around 0200. Sergeant Ryan threw small rocks at Plaintiff's window until Plaintiff came to the door and drunkenly proclaimed his Second Amendment rights, ignoring Sergeant Ryan's questions. An officer telephoned Plaintiff's apartment; Plaintiff's wife answered and at police request, she left the apartment, telling officers that Plaintiff had been drinking and that he had a collection of eighteen vintage rifles. Plaintiff's phone thereafter remained busy. At 0300 or 0400, a police negotiator talked with Plaintiff, who said the negotiator could come inside, but he would shoot her if she did. Another officer observing the apartment. reported seeing Plaintiff aim a rifle at Sergeant Ryan and his partner outside. Plaintiff was not seen with a rifle after 0630. By this time, more than 60 officers were present.

MERGE, the tactical team, arrived at 0700 and relieved the patrol officers, planning to arrest Plaintiff for pointing a rifle at officers. They turned off Plaintiff's power at 0848, broke his sliding glass door to toss in a throw phone, detonated a flash-bang at 1052, launched CS canisters into his apartment beginning at 1252, and talked at him with a bullhorn. While the officers were outside, Plaintiff told them repeatedly to leave him alone. Finally Plaintiff picked up the throw phone at 1413 and agreed to walk outside in his boxers and socks, and then did so, although when he stopped before being told to, an officer hit him in the leg with a less-lethal projectile, then handcuffed him.

Plaintiff went to trial on the California state charge of exhibiting a firearm against a peace officer, but the jury deadlocked and Plaintiff later pled no contest to brandishing a firearm in the presence of a security officer, a misdemeanor.

PROCEDURE: Plaintiff sued the City of San Jose, the San Jose PD, and some individual officers in U.S. District Court for the Northern District of California for unreasonable seizure in violation of the Fourth Amendment, specifically that his arrest was illegal because it was without a warrant. Plaintiff also claimed that the CS gas and the less-lethal projectile hit were batteries under California state law. After an eight-day trial, the jury rendered a verdict in favor of all defendants and Plaintiff took nothing. Upon motion for judgment as a matter of law after the verdict (aka JNOV), the trial court ruled that because Plaintiff was not seen with a rifle after 0630, no exigency existed, and the police had six hours from then until Plaintiff's surrender to get a telephonic arrest warrant. The deadlocked jury in Plaintiff's trial for exhibiting a firearm against a peace officer indicated that a neutral and detached magistrate may well not have found probable cause to issue an arrest warrant. Plaintiff's arrest was an unreasonable seizure in violation of the Fourth Amendment. JNOV GRANTED; Plaintiff awarded $1 nominal damages from the City of San Jose; injunction entered against same City ordering it to train its officers in proper Fourth Amendment arrest procedures. The City appealed the damages and injunction to the U.S. Court of Appeals for the Ninth Circuit. Plaintiff did not appeal the verdict for defenants on the state law claims, and conceded that probable cause to arrest him did exist during the standoff.

DECISION: First came the question of when and where Plaintiff was arrested. Arrest requires submission to the arresting officer either by force or by the arrestee's own decision. The location of arrest depends not on where the officers were at the time, but on where the arrestee was. Plaintiff was in his home when he decided to surrender, so that is where he was arrested. The difficulty with the usual standard of whether a reasonable person would have felt free to leave is that barricaded subjects may be surrounded, but elect to stay where they are. Whether or not Plaintiff submitted to any show of force before 0630, it is certain that after 0630, he went about his business in his home, as he could have done whether or not he was subjected to a show of force. Only when Plaintiff decided to go outside to be taken into custody was he arrested.

Since the arrest was without a warrant, an exception to the warrant requirement must have existed; otherwise, the arrest was unconstitutional. A person cannot be Terry-stopped in his own home on reasonable suspicion; probable cause is necessary, as is a warrant, unless a warrant exception applies. The relevant exception here was exigent circumstances, but though Plaintiff was obviously dangerous while barricaded with eighteen rifles, exigency also requires a showing that police did not have time to get a warrant. Here, the length of time that passed from 0630 to the first CS canisters projected into his home at 1300, which constituted "entries," was long enough for one or more out of the 60 officers present to begin obtaining a telephonic warrant. Plaintiff's arrest violated the Fourth Amendment. JUDGMENT AFFIRMED in all respects.

Judge Callahan dissented on grounds that Plaintiff did not objectively feel free to leave as of MERGE's arrival or at the very latest when his electricity was turned off. A reasonable person would know that the only outcomes would be surrender or forced entry. Throw phones should not be subject to any warrant requirement because they are good faith efforts to end standoffs peacably by communicating with the subject, who is in turn free to ignore them or throw the phone right back. Exigent circumstances still existed at all times past 0630 because Plaintiff was armed and a deadly danger to all within range. The jury's verdict should have remained undisturbed.

EDITORIAL: Would you believe, I have to just barely agree with the decision here, solely and only because yes, some supervisor should have told some rookie or detective to go get a warrant in the twelve hours this guy was in their lives. Fer sher, they would have gotten one. But as usual, nobody wants to leave the scene. I'd be like anybody else there, a kid on Christmas Eve waiting to see what Santa is going to bring. However, police officers do not always get to do exactly what they want. This is a relatively painless lesson that if you CAN get a warrant, DO IT FOR PETESAKES. Nobody got hurt, no evidence got suppressed, and the alleged bad guy got his day in court and won. A dollar in damages and an order to hold some in-service training on warrant requirements--hey, could have been worse.