                                                                              FILED
                           NOT FOR PUBLICATION                                   NOV 16 2010

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-10459

              Plaintiff - Appellant,             D.C. No. 2:08-cr-00448-JAM-1

  v.
                                                 MEMORANDUM*
MARIO RAYMOND ESPINOZA,

              Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                          Submitted November 1, 2010**
                            San Francisco, California

Before: NOONAN, PAEZ and BEA, Circuit Judges.

       The United States appeals the district court’s order granting defendant

Espinoza’s motion to suppress evidence. We have jurisdiction under 18 U.S.C.

§ 3731, and we affirm.


        *
             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).
      Warrantless searches and seizures inside a home are presumptively

unreasonable and in violation of the Fourth Amendment. Payton v. New York, 445

U.S. 573, 586 (1980). Under the emergency exception, however, “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.”

Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Here, the government argues

that the warrantless entry into Espinoza’s home was justified under the emergency

exception because the police had a reasonable belief that there might be an injured

person or another shooter lurking inside Espinoza’s home.

      The government’s argument is not supported by the record. At the time of

the entry into Espinoza’s house, Espinoza was in custody and detained in the back

of a police car. Neighbors had reported that Espinoza lived alone, and no one

reported seeing or hearing anyone besides Espinoza inside the house. When the

police arrived, they did not see anyone enter the house or hear any other voices

coming from inside. In short, there were no facts upon which an officer could base

a reasonable belief that an emergency existed after Espinoza was in custody. See

United States v. Gooch, 6 F.3d 673, 679 (9th Cir. 1993) (holding that warrantless

search of a shooting suspect’s tent was unreasonable because suspect was in

custody and there was no actual ongoing threat despite the recent discharge of a

firearm).
      The Supreme Court stated in Michigan v. Fisher that officers do not require

“ironclad proof of ‘a likely serious, life-threatening’ injury to invoke the

emergency aid exception.” 130 S. Ct. 546, 549 (2009). There, the police

encountered a crazed, bleeding man barricaded inside his house throwing objects

and shouting obscenities at the police. Id. at 547. The Court ruled that under those

circumstances, even though it was doubtful that the man was seriously injured, a

reasonable officer could have believed that the man or someone else inside might

have needed immediate medical attention or faced imminent harm. Id. at 548-49.

We do not read that fact-specific opinion to hold broadly that warrantless entry into

a home is always justified where the police cannot confirm that there are no injured

victims inside a house. We recognize the need for police officers to investigate

and respond to credible threats of injury. Nothing in Michigan v. Fisher, however,

indicates that the mere discharge of a firearm inside a house vitiates the protections

of the Fourth Amendment when the shooting suspect is in custody and there are no

circumstances suggesting that anyone else was present, much less injured.

      AFFIRMED
                                                                                FILED
United States v. Espinoza, No. 09-10459                                         NOV 16 2010

                                                                            MOLLY C. DWYER, CLERK
NOONAN, Circuit Judge, dissenting:                                           U.S. COURT OF APPEALS



      In Michigan v. Fisher, 130 S. Ct. 546 (2009), police responded to “a

complaint of a disturbance” at a named address. On arrival they found damaged

fence posts on the property and three broken windows in the home with the glass

on the ground outside. Blood was on the hood of the truck, on clothes within it,

and on one of the doors to the house. The police saw Fisher inside, standing,

screaming and throwing things. Reversing the decision of the state court, the

United States Supreme Court held that these facts constituted sufficient objective

evidence of an emergency to justify the warrantless entry of Fisher’s home.

      Dissenting, Justice Stevens noted the trial court’s finding “the police

decision to leave the scene and not return for several hours – without resolving any

potential dangerous situation and without calling for medical assistance –

inconsistent with a reasonable belief that Fisher was in need of immediate aid.” Id.

at 550.

      The police had no objective evidence that anyone was in the house except

Fisher. The police had no objective evidence that Fisher had injured himself

seriously enough to need assistance. What they had was objective evidence of

irrational behavior that might result in self-injury or injury to others.

                                            1
      In our case the police had evidence of a man behaving irrationally and doing

so with a gun. Just as much as in Fisher’s case, the police had objective evidence

of mindless violence and the possibility that the one committing it would have hurt

others, a possibility all the greater because Espinoza was established as having

used a gun.

      United States v. Gooch, 6 F.3d 673 (9th Cir. 1993) is incompatible with

Fisher, which effectively, although not expressly, overrules it. The Supreme Court

has established that violent conduct within a home not known to be otherwise

occupied, is a sufficient basis for officers to enter the home to see if there is any

person in need of aid.




                                           2
