                                                                            FILED
                             NOT FOR PUBLICATION
                                                                            OCT 23 2017
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


ADOLFO LEMUS and NOEL LEMUS,                     No. 16–16092

               Plaintiffs - Appellees,           D.C. No.
  v.                                             1:15-cv-00359-MCE-EPG

COUNTY OF MERCED,
                                                 MEMORANDUM*
               Defendant,
   and

PAUL BARILE,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of California
                       Morrison C. England, District Judge

                            Submitted October 16, 2017**
                               San Francisco, California

Before: IKUTA and HURWITZ, Circuit Judges, and MOLLOY,*** District Judge.

         *
             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).
         ***
             The Honorable Donald W. Molloy, District Judge for the U.S. District
Court for the District of Montana, sitting by designation.
       Defendant Paul Barile appeals the district court’s denial of his motion to

dismiss based on qualified immunity. We have jurisdiction over this interlocutory

appeal pursuant to 28 U.S.C. § 1291, and we affirm.

       We review de novo “the district court’s refusal to grant immunity at the

pleading stage in a § 1983 action.” Morley v. Walker, 175 F.3d 756, 759 (9th Cir.

1999). We conclude that the Second Amended Complaint “contain[s] sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)), namely that a reasonable officer in Barile’s

position would have known that Barile’s conduct violated a clearly established

constitutional right, Saucier v. Katz, 533 U.S. 194, 201–02 (2001), as modified by

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

       Barile lacked a warrant. His entry onto the Lemus property was therefore

presumptively unreasonable and a violation of the Fourth Amendment. Payton v.




                                             2
New York, 445 U.S. 573, 586 (1980). In addition, the facts alleged1 show it was

plausible that Barile had neither (1) “an objectively reasonable basis for

concluding that there [was] an immediate need to protect others or [himself] from

serious harm” (the emergency exception), nor (2) “probable cause to search” and

“exigent circumstances [to] justif[y] the warrantless intrusion” (the exigency

exception). Hopkins v. Bonvicino, 573 F.3d 752, 763–64, 766–67 (9th Cir. 2009)

(citations omitted).

      The Second Amended Complaint states Barile was dispatched to the Lemus

residence following a noise and gunshot complaint. When he arrived, he observed

“evidence of a social gathering including inter alia, a bon fire, music, and people

mulling about and cleaning up.” Barile “claim[ed] that he recognized the residence

and property from an investigation he conducted several years prior,” but,

according to the complaint, “[t]he investigation [Barile] refer[red] to occurred over

ten years ago.” These alleged facts plausibly show Barile lacked an objectively

reasonable basis to conclude there was an immediate need to protect himself or

      1
         The facts are taken from the Second Amended Complaint. While Barile is
correct that a court may consider certain documents outside the complaint in
deciding a motion to dismiss, Harris v. Amgen, Inc., 788 F.3d 916, 934 (9th Cir.
2014), rev’d on other grounds, 136 S. Ct. 758 (2016), the plaintiffs’ entire theory
of the case puts the veracity of Barile’s written report squarely in dispute, as does
the Second Amended Complaint itself. Accordingly, we rely on the facts as
presented in the Second Amended Complaint.

                                          3
others from serious harm, as required to meet the emergency exception. See

United States v. Snipe, 515 F.3d 947, 951–52 (9th Cir. 2008).

      The facts alleged also plausibly show Barile lacked probable cause and

exigent circumstances to justify a warrantless search. First, the report of gunshots

“at or near [the] residence” does not itself provide probable cause. Cf. Arpin v.

Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“In

establishing probable cause, officers may not solely rely on the claim of a citizen

witness that he was a victim of a crime, but must independently investigate the

basis of the witness’ knowledge or interview other witnesses.”). And because the

remnants of a party and the presence of social guests do not necessarily show that

relevant evidence was about to be destroyed, nor indicate a suspect was trying to

escape, nor that some other legitimate law enforcement effort would be frustrated,

the facts plausibly show no exigent circumstances existed. See Hopkins, 573 F.3d

at 763.

      Since the Second Amended Complaint alleges facts sufficient to survive

Barile’s motion to dismiss, it is immaterial whether the district court relied on the

Merced County Superior Court’s finding regarding Noel Lemus’s motion to

suppress, as “[w]e may affirm the district court on any basis supported by the

record.” Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005). Because to survive a


                                           4
motion to dismiss a complaint need only state a claim for relief that is plausible,

Iqbal, 556 U.S. at 678, we need not address whether Lemus’s claims would survive

a motion for summary judgment on a more developed record.

AFFIRMED.




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