                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 16 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

KEITH WALKER,                                    No. 09-35604

              Plaintiff - Appellee,              D.C. No. 2:08-cv-00549-JCC

  v.
                                                 MEMORANDUM*
KING COUNTY,

              Defendant,

  and

OFFICER MARYLISA PRIEBE-OLSON
and OFFICER PAUL AIO,

              Defendants - Appellants.


                   Appeal from the United States District Court
                     for the Western District of Washington
                  John C. Coughenour, District Judge, Presiding

                             Submitted April 8, 2010**
                               Seattle, Washington



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: HAWKINS, LUCERO,*** and N.R. SMITH, Circuit Judges.

      On appeal, Officer Marylisa Priebe-Olson and Officer Paul Aio (together

“Defendants”) argue that the district court erred in denying their motion for

summary judgment granting them qualified immunity. We disagree and affirm the

district court. Because the parties are familiar with the factual history of this case,

we will not recount it here.

1.    The district court correctly determined that Defendants were not entitled to

qualified immunity for their entry into the Walker home. In order to determine

whether Defendants are entitled to qualified immunity, we consider whether, after

viewing the facts in the light most favorable to the party asserting injury, (1) the

facts show the officers’ conduct violated a constitutional right, and (2) whether that

constitutional right in question was clearly established at the time of defendants’

misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other

grounds by Pearson v. Callahan, 129 S. Ct. 808, 818 (2009) (holding Saucier

protocol, while no longer mandatory in all cases, is "often beneficial").

      Under the first Saucier prong, Defendants argue that their warrantless entry

was lawful as a “welfare check,” relying on a Washington state case, State v.



        ***
            The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit
Court of Appeals, sitting by designation.

                                     Page 2 of 5
Gocken, 857 P.2d 1074, 1080 (Wash. Ct. App. 1993). However, the Gocken

holding does not cover Defendants in this case. The Gocken exception does not

apply if: (1) the officers’ motive in making their warrantless entry was to either

make an arrest or search for evidence of a crime; or (2) there was probable cause to

suspect a crime is being or has been committed. Gocken, 857 P.2d at 1080 & n.6.

      Viewing the evidence in the light most favorable to Walker, the Gocken rule

does not apply here because: (1) Defendants’ motive in going to Walker’s home

was to investigate the child abuse investigations and whether Walker was a felon-

in-possession of a firearm; and (2) Defendants had probable cause that a crime had

been committed when they entered Walker’s home. Defendants went to Walker’s

home only after receiving abuse allegations from D.W.’s mother. Additionally,

Officer Priebe-Olson had investigated Walker’s criminal history and “the felon-in-

possession issue is part of what she wanted to investigate at the Walker house.”

The record also shows that Defendants had been alerted to the possibility of a gun

at the house by D.W.’s mother.

      Under the second Saucier prong, Defendants would be granted immunity if

the constitutional right they violated was not clearly established at the time of their

actions. Again, even assuming Gocken created enough ambiguity to show that the




                                     Page 3 of 5
law was not clearly established, the Gocken rule did not cover Defendants’ actions

here for the reasons noted above.

2.    The district court correctly determined that Defendants were not entitled to

qualified immunity for arresting Walker. Because Defendants’ entry into Walker’s

home was unlawful under the Fourth Amendment, Defendants’ subsequent arrest

of Walker was also unlawful. See Payton v. New York, 445 U.S. 573, 589–90

(1980).

3.    The district court correctly determined that Defendants were not entitled to

qualified immunity for their warrantless search of Walker’s home and their seizure

of Walker’s gun. Defendants conducted a warrantless search of Walker’s home

based on information they obtained during an unlawful entry and unlawful

questioning. Consequently, their search of the house was entirely a product of

their unlawful entry and arrest. Cf. Wong Sun v. United States, 371 U.S. 471,

485–86 (1963) (holding that evidence obtained as a result of an illegal search is

inadmissable as “fruit of the poisonous tree”). Moreover, even if exigent

circumstances justifying a warrantless search existed after Defendants entered the

home, Defendants learned of such circumstances only as a result of this unlawful

entry, questioning, and arrest. Exigent circumstances, therefore, cannot render the

search lawful.


                                    Page 4 of 5
AFFIRMED.




            Page 5 of 5
