                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 05-10640
                Plaintiff-Appellee,                 D.C. No.
               v.
                                              CR-04-00093-LDG
                                               District of Nevada,
JASPER BLACK,
                Defendant-Appellant.               Las Vegas

                                                    ORDER

                       Filed April 10, 2007

      Before: Betty B. Fletcher and Marsha S. Berzon,
     Circuit Judges, and David G. Trager,* Senior Judge.

                             Order;
                   Dissent by Judge Kozinski


                             ORDER

  Judges B. Fletcher and Trager voted to deny the petition for
panel rehearing. Judge Berzon voted to grant the petition for
panel rehearing. Judge Berzon voted to grant the petition for
rehearing en banc and Judges B. Fletcher and Trager recom-
mended denial of the petition for rehearing en banc.

   The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the mat-
ter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc con-
sideration. Fed. R. App. P. 35.

   *The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.

                                4061
4062                UNITED STATES v. BLACK
  The petition for panel rehearing and the petition for rehear-
ing en banc are denied.



KOZINSKI, Circuit Judge, with whom Judges REINHARDT,
KLEINFELD and BERZON join, dissenting from the order
denying the petition for rehearing en banc:

   Once upon a time in the West there was a special place cal-
led home. Solemn pronouncements from our nation’s highest
court, and our own court, protected it from warrantless police
intrusions. “With few exceptions,” the Supreme Court held,
“the question whether a warrantless search of a home is rea-
sonable and hence constitutional must be answered no.” Kyllo
v. United States, 533 U.S. 27, 31 (2001). Such searches were
deemed “presumptively unreasonable.” Payton v. New York,
445 U.S. 573, 586 (1980). We held that the “government
bears a heavy burden of demonstrating that exceptional cir-
cumstances justified departure from the warrant requirement.
The burden [could not] be satisfied by speculation about what
may or might have happened.” United States v. Howard, 828
F.2d 552, 555 (9th Cir. 1987) (emphasis added) (quoting
United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985)).
Police who entered the home without a valid warrant could be
held personally liable. Groh v. Ramirez, 540 U.S. 551, 563-65
(2004).

   That special place is no more. The rules haven’t changed,
at least not on paper. But legal rules are only as good as their
last application. The panel majority dutifully recites the right
standard, but guts it of all meaning by approving an intrusion
into the home that does not remotely satisfy it. If the justifica-
tion here satisfies the government’s “heavy burden” to show
non-speculative “exceptional circumstances,” it’s hard to
imagine how we can keep the police from barging into any
home anytime they please.
                    UNITED STATES v. BLACK                  4063
   The relevant facts are undisputed. Walker called 911 at pre-
cisely 8:39:3465 A.M. from a grocery store to report that she
had just been beaten by Black, who had a gun. At the end of
the call, Walker indicated that she would drive back to the
apartment with her mother, and that they would wait for the
police outside the building in a white pick-up truck. She
spoke with the dispatcher until 8:40:1749. Officer Rodriguez
was dispatched at 8:42:5825, and arrived at the apartment half
a minute later, at 8:43:2487. The total time elapsed between
Walker hanging up with the 911 dispatcher and the arrival of
the police at the apartment was three minutes and seven sec-
onds.

   Rodriguez testified that it would take about two minutes to
drive from the grocery store to the apartment. When Rodri-
guez arrived, he did not see Walker, her mother or the white
truck. Walker was, at that point, just one minute past her earli-
est possible arrival time. Rodriguez and another officer
knocked on the apartment door, but nobody answered. The
other officer circled around back and found Black in the back-
yard. When the officers didn’t find a gun on Black, they took
his key to the apartment, performed a “welfare” search of the
dwelling and found the gun—and, of course, didn’t find
Walker.

   There was absolutely no evidence of the government’s
nightmare scenario that Walker lay bleeding and unconscious
inside the apartment. As the 911 dispatcher’s log shows, there
was “not enough time for Black to somehow get Walker back
into the apartment, and to injure her, and then to leave, as the
government theorizes could have been the case.” Berzon Dis-
sent at 3974. Nor were there any eyewitnesses, signs of a
scuffle, reports of gunshots or even of a commotion. The
abduction would have happened in the street, in broad day-
light, yet no one saw a thing; the super, who talked to the
police, reported nothing unusual.

   Officer Rodriguez admitted that he had “[n]o information”
that Walker was in the residence; his explanation for the war-
4064                UNITED STATES v. BLACK
rantless entry was that “if she’d have come back to the resi-
dence, [Walker] possibly could have gotten taken . . . back
into the house and stuff.” If this satisfies the government’s
“heavy burden” to show “extraordinary circumstances” not
based on “speculation,” Howard, 828 F.2d at 555, then
“heavy burden,” “extraordinary circumstances” and “specula-
tion” have no meaning in these parts.

   The majority gives the government a pass because “the exi-
gencies of domestic abuse cases present dangers that, in an
appropriate case, may override considerations of privacy.”
Maj. op. at 3969 (quoting United States v. Brooks, 367 F.3d
1128, 1136 (9th Cir. 2004)). The problem with this approach
is that the government has any number of such crises-du-jour:
terrorism, child pornography, child abuse, drugs, hate crimes
—the list is endless. When confronted with such serious
crimes, it is the job of the police to be suspicious; the job of
the courts is to insist that police develop evidence supporting
these suspicions before they defile the sanctity of the home.

   In a particularly disturbing passage, the panel majority
opines that “[e]rring on the side of caution is exactly what we
expect of conscientious police officers.” Maj. op. at 3969.
This is entirely backwards when the cautious error involves
invasion of the home. In such circumstances, we expect police
to err on the other side of caution by staying out unless and
until they obtain a warrant or satisfy the demanding constitu-
tional standard for a warrantless search. The majority’s unfor-
tunate phrase will be widely seen as a green light for the
police to “err on the side of caution” by breaking into peo-
ple’s homes based on half-baked suspicions.

   When a panel of our court can find that the facts here sat-
isfy the government’s “heavy burden” for invading the home
without a warrant, I despair about the future of our constitu-
tional rights. If the right accorded the greatest protection by
the Fourth Amendment—the right to privacy of the home—
can be so casually brushed aside, no right is safe. Because my
                  UNITED STATES v. BLACK               4065
colleagues do not similarly view this issue as one of excep-
tional importance, I sorrowfully dissent.
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