                                                                           FILED
                            NOT FOR PUBLICATION                             APR 14 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MACARIO BELEN DAGDAGAN,                          No. 10-15231

              Plaintiff - Appellee,              D.C. No. 2:08-cv-00922-GEB-
                                                 GGH
  v.

JASON WENTZ, Vallejo Officer                     MEMORANDUM *
(ID#524); JOHN BOYD, Vallejo Officer
(ID#589),

              Defendants - Appellants,

  and

CITY OF VALLEJO; JOHN MELVILLE,

              Defendants.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                            Submitted April 11, 2011 **
                             San Francisco, California


        *
             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: NOONAN and N.R. SMITH, Circuit Judges, and COLLINS, District
Judge.***


      Macario Belen Dagdagan (“Dagdagan”) sued the City of Vallejo, California

and three of its police officers in this §1983 civil rights action. Two of the officers,

Jason Wentz (“Wentz”) and John Boyd (“Boyd”), sought qualified immunity.

Indulgently taking the facts as offered by Wentz and Boyd, the district court denied

qualified immunity. The officers appeal.

      Viewing the facts in the light most favorable to the nonmoving party, we

observe that the officers were investigating an assault that allegedly occurred

approximately two hours earlier. See La Londe v. County of Riverside, 204 F.3d

947, 953-54 (9th Cir. 2000). Having interviewed the victim at her home, the

officers proceeded to the apartment of the alleged assailant, Dagdagan. Without

attempting to secure a warrant, the officers entered and found Dagdagan in bed,

apparently asleep. They roused him, tased him and arrested him, causing him

severe bodily injury in the process of arrest.

      Absent a showing of exigency or emergency, a warrant is required to search

a home or arrest a person within a home. See Hopkins v. Bonvicino, 573 F.3d 752,



        ***
             The Honorable Raner C. Collins, District Judge for the U.S. District
Court for Arizona, Tucson, sitting by designation.

                                           2
763, 773 (9th Cir. 2009). The emergency exception to the warrant requirement

applies where officers believe it is necessary to enter a home “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). The exigency exception applies

where the officers have “probable cause to believe a crime has been or is being

committed and a reasonable belief that their entry is ‘necessary to prevent . . . the

destruction of relevant evidence, the escape of the suspect, or some other

consequence improperly frustrating legitimate law enforcement efforts.’” Hopkins,

573 F.3d at 763 (quoting United States v. McConney, 728 F.2d 1195, 1199 (9th

Cir. 1984) (en banc)).

      By the time the officers arrived at Dagdagan’s home, any emergency or

exigency that might have justified their warrantless entry had long since passed.

See United States v. Johnson, 256 F.3d 895, 907 (9th Cir. 2001) (“[T]he critical

time for determining whether any exigency exists is the moment the officer makes

the warrantless entry.” ); cf. Brigham City, 547 U.S. at 1949 (finding warrantless

entry justified to provide assistance where officers witnessed, through a window, a

young man striking an adult in the face, “sending the adult to the sink spitting

blood”). Before arriving at Dagdagan’s residence, the officers knew that Kearney,

the only known victim of the alleged assault, was at her own home. Officers


                                           3
Wentz and Boyd had no reason to believe that Dagdagan was injured and in need

of assistance, nor that anyone other than Dagdagan was present in Dagdagan’s

apartment. Having unlawfully entered Dagdagan’s home and found him in bed,

apparently asleep, no reasonable officer could then conclude that there was

probable cause to arrest Dagdagan for a violation of California Penal code § 148.

See Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (observing that the

lawfulness of the officers’ conduct at the time of the arrest is an essential element

of a § 148 violation). No emergency or exigency justified the officers’ flagrant

invasions of clearly established constitutional rights.

      AFFIRMED.




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