United States v. Black ( 2006 )


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  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No. 05-10640
    Plaintiff-Appellee,
    v.                                D.C. No.
    CR-04-00093-LDG
    JASPER BLACK,
    OPINION
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the District of Nevada
    Lloyd D. George, District Judge, Presiding
    Argued and Submitted
    September 14, 2006—San Francisco, California
    Filed October 26, 2006
    Before: Betty B. Fletcher and Marsha S. Berzon,
    Circuit Judges, and David G. Trager,* District Judge.
    Opinion by Judge Betty B. Fletcher;
    Dissent by Judge Berzon
    *The Honorable David G. Trager, Senior United States District Judge
    for the Eastern District of New York, sitting by designation.
    17951
    17954               UNITED STATES v. BLACK
    COUNSEL
    Anne Traum, Esq., AFPD, Las Vegas, Nevada, for the
    defendant-appellant.
    J. Gregory Damm, Esq., AUSA, Las Vegas, Nevada, for the
    plaintiff-appellee.
    OPINION
    B. FLETCHER, Circuit Judge:
    On appeal, Jasper Black challenges his conviction as a
    felon in possession, arguing that the district court erred when
    it denied his motion to suppress the gun. We affirm.
    I.
    The police justify their entry into Black’s apartment, not as
    one looking for evidence of a crime but as a welfare search
    occasioned by a 911 domestic violence call. Police were dis-
    patched to the apartment after Black’s ex-girlfriend, Tyroshia
    Walker, called 911 and reported that Black had beaten her up
    that morning in the apartment and that he had a gun. Toward
    the end of her 911 call, Walker told the dispatcher that she
    intended to return to the apartment with her mother in order
    to retrieve her clothing and that the two women would wait
    outside the apartment, in a white Ford pickup truck, for police
    to arrive. Officer Rodriguez was dispatched to the scene to
    meet the women. When he arrived at the apartment a few
    minutes later there were no signs of Walker, her mother, or
    the truck. Rodriguez contacted Officer Kikkert, who was
    already on his way to the apartment, and directed him to stop
    by the grocery store from which Walker had made her phone
    call. Kikkert checked the store for signs of Walker but, find-
    ing none, he continued to the apartment.
    UNITED STATES v. BLACK                17955
    After Kikkert arrived at Black’s apartment, the two officers
    knocked on the front door but received no response. They
    then contacted the apartment manager in an attempt to gain
    access to the building. In the meantime, Kikkert circled the
    building to inspect the backyard area. There, he discovered an
    individual who matched Black’s physical description. The
    individual identified himself as Jasper Black and admitted that
    he knew the police were investigating a domestic violence
    call. He denied knowing the whereabouts of Walker and also
    denied that he lived in the apartment. When the defendant
    became agitated, one of the police officers patted him down
    for weapons and searched his pockets with the defendant’s
    consent, which yielded the key to the apartment. Using the
    key, Rodriguez entered and made a quick sweep of the apart-
    ment to see if anyone was there. No one was present, but
    Rodriguez noticed a gun on the bed. Without touching the
    gun, he exited, arrested Black, and sought a warrant for the
    gun.
    [1] The police were justified in their entry because they
    feared that Walker could have been inside the apartment,
    badly injured and in need of medical attention, and that their
    warrantless search of the apartment was, therefore, justified
    by exigent circumstances. As the government argued both
    during the suppression hearing and on appeal, Walker could
    have returned to the apartment after her 911 call, but before
    police arrived at the scene. At that point, Black could have
    managed to pull her back into the apartment. Once inside the
    apartment, Black — in a repeat performance of his behavior
    earlier that morning — could have beaten Walker again and
    left her in the apartment severely injured. Even worse, he
    could have shot Walker using the gun that police knew was
    inside the apartment.
    The dissent would hold that the circumstances of this case
    do not support an objectively reasonable belief that Walker
    could be inside the apartment. It emphasizes the short time
    span between Walker’s phone call and Rodriguez’s arrival on
    17956               UNITED STATES v. BLACK
    the scene. Because Walker was a two-minute drive from the
    apartment building when she called the police, and Officer
    Rodriguez arrived approximately three minutes after the call,
    the dissent argues that there was not sufficient time after
    Walker’s arrival for the defendant to force her into the apart-
    ment. The dissent parses the time too finely.
    [2] First, if Black had seen Walker arrive outside the build-
    ing, it would take little time for him to threaten Walker with
    a gun and force her inside. Second, the times cited by the dis-
    sent are all approximate times. Rodriguez was dispatched at
    approximately 8:40 and arrived at approximately 8:43. If each
    approximation is off by a single minute, then Walker could
    have arrived at the apartment three minutes before Rodriguez
    — ample time for Black to have taken her inside the building.
    We conclude that the circumstances do support an objectively
    reasonable belief that Walker could be in the apartment.
    [3] This is a case where the police would be harshly criti-
    cized had they not investigated and Walker was in fact in the
    apartment. Erring on the side of caution is exactly what we
    expect of conscientious police officers. This is a “welfare
    search” where rescue is the objective, rather than a search for
    crime. We should not second-guess the officers objectively
    reasonable decision in such a case.
    [4] Our circuit has recognized that “the exigencies of
    domestic abuse cases present dangers that, in an appropriate
    case, may override considerations of privacy.” United States
    v. Brooks, 
    367 F.3d 1128
    , 1136 (2004). While we have
    stopped short of holding that “domestic abuse cases create a
    per se exigent need for warrantless entry,” we continue to
    evaluate, on a case-by-case basis, whether the “total circum-
    stances, presented to the law officer before a search . . .
    relieved the officer of the customary need for a prior war-
    rant.” 
    Id. Our own
    individualized assessment of the circum-
    stances presented in this case leads us to the same conclusion
    that the district court reached: the officer’s initial warrantless
    UNITED STATES v. BLACK                       17957
    entry into the apartment was justified by exigent circumstance
    and, as a result, the subsequent seizure of Black’s handgun —
    this time, accomplished with warrant in hand — was not
    unconstitutional under the Fourth Amendment.1
    [5] We affirm the district court’s decision to deny Black’s
    motion to suppress and, in turn, uphold his conviction.
    II.
    [6] On appeal, Black also argues that the government failed
    at the sentencing hearing to prove that he had a prior qualify-
    ing controlled substances offense under U.S.S.G.
    § 2K2.1(a)(2), because it never supplied the sentencing judge
    with the actual statute of conviction. See United States v.
    Pimentel-Flores, 
    339 F.3d 959
    , 967 (9th Cir. 2003) (“[T]he
    actual statute of prior conviction must be supplied to the dis-
    trict court by the government whether or not anyone objects
    to its absence.”). The government acknowledges the mistake,
    but asks us to correct it by taking judicial notice of a
    controlled-substances-related Judgment of Conviction that
    was issued by a Nevada state court against Black. Appellate
    1
    Analyzing police action under the “emergency aid” doctrine compels
    the same conclusion. Under this doctrine, “law enforcement officers may
    enter a home without a warrant to render emergency assistance to an
    injured occupant or to protect an occupant from imminent injury.” See
    Brigham City, Utah v. Stuart, 
    126 S. Ct. 1943
    , 1948 (2006). If, in the
    course of doing so, an officer “discovers evidence of illegal activity, that
    evidence is admissible even if there was not probable cause to believe that
    such evidence would have been found.” See United States v. Martinez, 
    406 F.3d 1130
    , 1164 (9th Cir. 2005). In Brigham City, the Supreme Court held
    that the emergency aid doctrine applies only if a court concludes that an
    officer’s decision to enter without a warrant was objectively reasonable.
    See Brigham 
    City, 126 S. Ct. at 1948
    (rejecting the argument that the offi-
    cer’s subjective motivation is in any way relevant). Because this “objec-
    tive reasonableness” test is essentially the same as the one courts use to
    determine whether police action is justified under the “exigent circum-
    stances” exception, we can affirm the district court’s denial of Black’s
    motion to suppress under the emergency aid doctrine as well.
    17958               UNITED STATES v. BLACK
    courts “generally will not consider facts outside the record
    developed before the district court,” but “may take notice of
    proceedings in other courts, both within and without the fed-
    eral judicial system, if those proceedings have a direct relation
    to matters at issue.” See United States ex rel. Robinson Ran-
    cheria Citizens Council v. Borneo, Inc., 
    971 F.2d 244
    , 248
    (9th Cir. 1992) (taking judicial notice of a California court’s
    final judgment).
    [7] Because Black did not object to the government’s fail-
    ure to provide the statute’s citation before the district court,
    we review this matter for plain error. See 
    Pimentel-Flores, 339 F.3d at 967
    . In so doing, we conclude that although the
    government’s error was both “actual” and “plain,” it did not
    affect Black’s “substantial rights.” 
    Id. First, Black’s
    prior con-
    viction is clearly related to a controlled substances offense.
    Second, if we declined to take judicial notice of the Judgment
    of Conviction, we would merely be delaying the inevitable;
    our next step would simply be to remand Black’s case for
    resentencing. 
    Id. at 969
    (remanding to the district court for
    resentencing so that the government can satisfy its burden of
    “submit[ting] judicially-noticeable documents demonstrating
    the prior statute of conviction”). Rather than take this unnec-
    essary step — and in light of the fact that our decision to
    avoid doing so does not affect Black’s substantial rights —
    we, instead, take judicial notice of the Judgment of Convic-
    tion and affirm Black’s 110-month sentence.
    AFFIRMED.
    BERZON, Circuit Judge, dissenting:
    I dissent. Because I believe the officer’s warrantless search
    of the apartment cannot be justified under the Fourth Amend-
    ment’s “exigent circumstances” exception to the warrant
    UNITED STATES v. BLACK                       17959
    requirement, I would reverse the district court’s decision to
    deny Black’s motion to suppress and overturn his conviction.1
    I begin by emphasizing the “heavy burden” that the govern-
    ment bears when trying to prove exigent circumstances. See
    United States v. Howard, 
    828 F.2d 552
    , 555 (9th Cir. 1987)
    (citing United States v. Licata, 
    761 F.2d 537
    , 543 (9th Cir.
    1985)). Exigent circumstances are “those circumstances that
    would cause a reasonable person to believe that entry . . . was
    necessary to prevent physical harm to the officers or other
    persons, the destruction of relevant evidence, the escape of
    the suspect, or some other consequence improperly frustrating
    legitimate law enforcement efforts.” United States v. Brooks,
    
    367 F.3d 1128
    , 1135 (9th Cir. 2004) (omission in original)
    (citing United States v. McConney, 
    728 F.2d 1195
    , 1199 (9th
    Cir. 1984) (en banc)). To prove that such circumstances
    existed, the government cannot rely on “speculation about
    what may or might have happened.” See 
    Howard, 828 F.2d at 555
    . Instead, it must point to “specific and articulable facts
    which, taken together with rational inferences . . . , support
    the warrantless intrusion.” 
    Id. (internal quotations
    omitted)
    (omission in original). A court, in turn, must view the exigen-
    cies “from the totality of circumstances known to the officers
    at the time of the warrantless intrusion.” 
    Id. See also
    United
    States v. Arellano-Ochoa, Nos. 04-30545, 05-30328, 
    2006 WL 2506395
    , at * 2 (9th Cir. Aug. 31, 2006) (“Whether exi-
    gent circumstances exist in a given case is a fact-specific
    inquiry that depends on the totality of the circumstances.”). It
    must consider whether, in light of these circumstances, an
    officer’s decision to enter without a warrant was “objectively
    reasonable.” 
    Brooks, 367 F.3d at 1136
    .
    As the majority points out, our court and other circuits have
    indeed recognized that domestic violence cases present a
    unique set of dangers that may, at times, “override consider-
    1
    Were I to reach the issue decided in Part II of the disposition, regarding
    sentencing, I would agree with the majority’s conclusion.
    17960              UNITED STATES v. BLACK
    ations of privacy.” 
    Id. At the
    same time, there is no domestic
    abuse exception to the Fourth Amendment generally, or to the
    limitations on the exigent circumstances exception in particu-
    lar. Instead, in those domestic violence cases where courts
    have upheld a finding of exigent circumstances, the police
    were presented with clear evidence that the victim was both
    still in the vicinity of the abuser and still in danger. See
    United States v. Martinez, 
    406 F.3d 1160
    , 1164 (9th Cir.
    2005) (“When the domestic violence victim is still in the
    home, circumstances may justify an entry pursuant to the exi-
    gency doctrine.”). In United States v. Brooks, for example, we
    held that exigent circumstances supported an officer’s war-
    rantless entry into a hotel room when the officer was dis-
    patched to the room after a guest called 911 to report “sounds
    of a woman being beaten” from the room next 
    door. 367 F.3d at 1130
    . When the officer arrived, the defendant answered the
    door and confirmed that a woman had been in the room, that
    she had been “very loud,” and that she was now in the bath-
    room. 
    Id. Faced with
    this set of circumstances — and consid-
    ering the fact that the officer could not see or hear the woman
    but could observe that the hotel room was in “total disarray”
    — this court held that the officer’s decision to enter the room
    without a warrant was justified “by an objectively reasonable
    belief that a woman might be injured and entry was ‘neces-
    sary to prevent physical harm.’ ” 
    Id. at 1130,
    1135. See also
    
    Martinez, 406 F.3d at 1163-64
    (holding that no exigent cir-
    cumstances justified a warrantless entry where police arrived
    at the scene and found the domestic abuse victim already out-
    side the home, in the front yard); United States v. Davis, 
    290 F.3d 1239
    , 1243-44 (10th Cir. 2002) (finding no exigent cir-
    cumstances to justify a warrantless entry, where police
    responded to a domestic disturbance call only to have the vic-
    tim “appear[ ] without any signs of harm”); United States v.
    Cunningham, 
    133 F.3d 1070
    , 1071-73 (8th Cir. 1998) (hold-
    ing that exigent circumstances justified a warrantless search
    of the home where police received a 911 call from a woman
    who identified herself and claimed that she was being held
    against her will and where, upon arriving at the scene, police
    “could hear a woman crying inside the apartment”); Tierney
    v. Davidson, 
    133 F.3d 189
    , 197 (2d Cir. 1998) (holding that
    exigent circumstances justified a warrantless entry and search
    of a home where the officer responded to a 911 call reporting
    a domestic disturbance and, after arriving at the scene, spoke
    UNITED STATES v. BLACK                 17961
    to neighbors who informed him “that the shouting had ended
    right before his arrival,” thus allowing the officer to reason-
    ably conclude that “both antagonists remained in the house”).
    In the case before us, however, the government points to no
    specific facts leading to the “objectively reasonable” belief
    that Walker, following her phone call to 911, somehow found
    herself back inside the apartment where Black was staying
    and was therefore in need of medical assistance. Instead, all
    of the facts available to the police that morning point to the
    conclusion that Walker was outside the apartment, not trapped
    within it.
    The police knew that, at 8:39 a.m., Walker had called the
    911 dispatcher from a local grocery store. Twice, the dis-
    patcher asked if Walker needed medical assistance; twice,
    Walker refused. At the end of the conversation, Walker told
    the dispatcher that her mother was with her and that, together,
    they would return to the apartment on 804 J Street. She
    informed the dispatcher that she would stay outside the apart-
    ment.
    The first officer arrived at 804 J Street, about three minutes
    after Walker called 911. He testified during the evidentiary
    hearing that it would have taken him about two minutes to
    drive from the grocery store to the apartment. Even assuming
    that Walker left the store immediately after she got off the
    phone with the 911 dispatcher and that she immediately
    headed to 804 J Street, she still would have only arrived back
    at the apartment about one minute before the police. That is
    not enough time for Black to somehow get Walker back into
    the apartment, and to injure her, and then to leave, as the gov-
    ernment theorizes could have been the case. Further, at no
    point during his time outside the apartment, even immediately
    upon his arrival, did the first officer hear any noises coming
    from inside the residence.
    17962                   UNITED STATES v. BLACK
    The majority argues that this timeline of the morning’s
    events somehow errs by relying — seemingly, too much —
    on the evidence supported by the record. And yet, these are
    the facts before us and the facts upon which we must rely to
    make our decision. To be sure, none of the information here
    affirmatively confirms exactly where Walker was after she
    made her 911 call. Neither, however, does it constitute the
    kind of “specific and articulable facts” that, when “taken
    together with rational inferences” would “support the warrant-
    less intrusion.” 
    Howard, 828 F.2d at 555
    . Instead, the govern-
    ment’s arguments amount to no more than insufficient
    “speculation.” Id.2
    For these reasons, I respectfully dissent.
    2
    Unlike the majority, I find the government’s argument equally uncon-
    vincing when considered under the “emergency aid doctrine.” Both the
    emergency aid doctrine and the exigent circumstances exception require
    an “objective reasonableness” analysis. Because police actions that morn-
    ing were no more “objectively reasonable” under the emergency aid doc-
    trine exception than they were under the exigent circumstances exception,
    I believe that their argument under this alternative exception to the Fourth
    Amendment’s warrant requirement fails as well.