                                                                           FILED
                           NOT FOR PUBLICATION                             FEB 23 2015

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



                            FOR THE NINTH CIRCUIT


JENNIFER PARENTEAU,                              No. 13-55580

              Plaintiff - Appellant,             D.C. No. 3:11-cv-02022-H-RBB

  v.
                                                 MEMORANDUM*
RAUL SILVA, an individual; DEREK
SANDERS, an individual; COUNTY OF
SAN DIEGO; and DOES 1-20, inclusive,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                     Argued and Submitted February 12, 2015
                              Pasadena, California

Before: GRABER and WARDLAW, Circuit Judges, and MOLLOY,** Senior
District Judge.

       Jennifer Parenteau appeals the district court’s summary judgment in favor of

Defendants Deputy Raul Silva, Deputy Derek Sanders, and the County of San

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Donald W. Molloy, Senior District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
Diego on her 42 U.S.C. § 1983 claim for unlawful entry in violation of the Fourth

Amendment. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse

and remand.

                                            I.

      The district court improperly granted summary judgment in favor of

Deputies Silva and Sanders on the question of unlawful entry. For warrantless

entry to be justified under the Fourth Amendment, the Deputies were required to

have probable cause and exigent circumstances justifying immediate entry. United

States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010). The Deputies also must

“show that a warrant could not have been obtained in time, and must demonstrate

specific and articulable facts to justify the finding of . . . exigent circumstances.”

Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154, 1161 (9th Cir. 2014)

(internal quotation marks and citation omitted).

      Relying on the 911 operator’s report, the Deputies’ initial interaction with

Eric Johnson, and the presence of an unidentified woman inside the home, the

Deputies assert they had both probable cause to investigate a burglary or attempted

burglary and exigent circumstances justifying immediate entry of the house. We

agree that the Deputies initially had probable cause to believe that a crime was

being committed. As to the existence of exigent circumstances, we conclude that


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there is an issue of fact as to whether such circumstances existed at the time the

Deputies entered the house without a warrant. Because that factual issue cannot be

resolved as a matter of law, the Deputies’ motion for summary judgment was

improperly granted. See Green v. City & Cnty. of S.F., 751 F.3d 1039, 1046 (9th

Cir. 2014) (holding “the reasonableness of officer conduct should be decided by a

jury where the inquiry turns on disputed issues of material fact”).

      Summary judgment also was not appropriate on qualified immunity grounds

because, construing the facts in favor of Parenteau, Tolan v. Cotton, 134 S. Ct.

1861, 1863 (2014) (per curiam), no reasonable officer could have believed the

entry was lawful in light of the clearly established law.

                                           II.

      Because the district court determined that the Deputies did not violate the

law, it did not reach the merits of Parenteau’s claims against the County. We

remand that issue to the district court to address in the first instance. K.M. ex rel.

Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1103 (9th Cir. 2013).

      REVERSED AND REMANDED.




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