                            NOT FOR PUBLICATION                          FILED
                    UNITED STATES COURT OF APPEALS                        SEP 13 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       Nos. 17-10071

                Plaintiff-Appellee,             D.C. No.
                                                5:15-cr-00288-BLF-1
 v.
                                                MEMORANDUM*
JAVIER GARCIA,

                Defendant-Appellant.

UNITED STATES OF AMERICA,                       No.    17-10072

      Plaintiff-Appellee,                       D.C. No.
                                                5:10-cr-00301-BLF-4
v.

JAVIER GARCIA,

      Defendant-Appellant.



                   Appeal from the United States District Court
                       for the Northern District of California
                  Beth Labson Freeman, District Judge, Presiding

                       Argued and Submitted May 14, 2018
                            San Francisco, California

Before: WALLACE and N.R. SMITH, Circuit Judges, and BATTS,** District

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Judge.

      Defendant Javier Garcia appeals from the district court’s order denying his

motion to suppress evidence recovered from his residence and post-arrest

statements he made to police. We have jurisdiction under 28 U.S.C. § 1291, and

we reverse.

      Defendant’s motion to suppress challenged officers’ warrantless entry into

his residence, which occurred after a man named Nevarez, who was fleeing from

police, ran into the residence. Police observed Nevarez holding his waistband

while he ran and feared that he might be armed. Police did not enter the residence

immediately after Nevarez but, instead, stood guard in front and back of the

building. Nevarez was arrested a few minutes later in a neighbor’s yard after

exiting the residence through a bathroom window. Nevarez’s arrest preceded the

officers’ entry.

      Between the time of Nevarez’s and the officers’ entry into the building, two

individuals emerged from the area of the unit: a young boy and a woman who,

according to the officer stationed in front, appeared shaken and frightened. The

officer asked the young boy who had run into the house, and the boy said,

“Poncho.” When the officer asked for the runner’s real name, the boy repeated,



      **
            The Honorable Deborah A. Batts, United States District Judge for the
Southern District of New York, sitting by designation.

                                         2
“Poncho.” The officer did not recall whether he had asked the woman if anyone

else remained in the house.

       The officers entered the house and encountered Defendant. After learning

that Defendant was on supervised release with a search condition, they performed a

full search of the residence. The officers found methamphetamine during this

search and arrested Defendant.

      Following an evidentiary hearing, the district court found that the initial

warrantless entry was lawful under both the emergency aid and protective sweep

exceptions to the warrant requirement. On February 7, 2017, Defendant was

convicted on stipulated facts at a bench trial of possession of methamphetamine

with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c), as

well as violation of his supervised release.

      We review de novo the district court's denial of a motion to suppress

evidence, and review underlying factual findings for clear error. United States v.

Ewing, 638 F.3d 1226, 1229 (9th Cir. 2011).

          1. Emergency Exception

      The emergency exception allows officers to enter a home without a warrant

where “(1) considering the totality of the circumstances, law enforcement had an

objectively reasonable basis for concluding that there was an immediate need to

protect others or themselves from serious harm; and (2) the search’s scope and



                                          3
manner were reasonable to meet the need.” 1 United States v. Snipe, 515 F.3d 947,

952 (9th Cir. 2008). The emergency exception is “narrow” and its boundaries

“rigorously guarded.” Bonivert v. City of Clarkston, 883 F.3d 865, 877 (9th Cir.

2018) (quoting United States v. Stafford, 416 F.3d 1068, 1073 (9th Cir. 2005)).

      The officers here lacked an objectively reasonable basis to believe that there

was someone inside of the residence in need of immediate assistance. The

Government’s arguments regarding what the officers did not know—including

Nevarez’s connection to the apartment, whether he was armed, and what he

planned to do inside—cannot justify entry, as lack of information is the opposite of

articulable facts.2 See Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154,

1164 (9th Cir. 2014). And what the officers did know—that it was a high-crime

area and that individuals attempting to avoid arrest can sometimes be dangerous—

consisted in large part of the type of generalizations that cannot form the basis of a


1
  The dissent purports to apply this same standard, but it does not. The dissent
concludes that the “officers had reasonable grounds to believe someone inside
Garcia’s residence may have needed immediate assistance.” (emphasis added).
However, the mere possibility of an emergency is not enough; a search under the
emergency aid exception is lawful only if it was reasonable to believe that an
emergency actually existed. See Snipe, 515 F.3d at 952 (holding that there must be
“an objectively reasonable basis for concluding that there was an immediate need
to protect others or [the officers] from serious harm” (emphasis added)).The
difference is perhaps subtle, but it is determinative.
2
 Moreover, at the point that the young boy identified the runner as “Poncho”—not
once, but twice—it was less reasonable for officers to believe that Nevarez had no
connection to the residence.

                                          4
particularized belief. See United States v. Granville, 222 F.3d 1214, 1219 (9th Cir.

2000); United States v. Becker, 23 F.3d 1537, 1541 (9th Cir. 1994); cf. United

States v. Bynum, 362 F.3d 574, 580–81 (9th Cir. 2004).

      With respect to the fear that Nevarez was armed, grabbing one’s waistband

when one begins to run—a gesture also common when the individual is wearing

baggy pants3—is much less suggestive of actual gun possession than the facts

confronting officers in cases where we have upheld the emergency exception in

part on this basis. See United States v. Black, 482 F.3d 1035, 1039 (9th Cir. 2007)

(defendant’s ex-girlfriend called police, identified herself, and told them that

defendant had a gun). Further, even if the officers had seen a gun, Nevarez took no

actions indicating that he was a danger to others or that he intended to use it. See

United States v. Nora, 765 F.3d 1049, 1054–55 (9th Cir. 2014).

      More significantly, any potential danger associated with Nevarez’s presence

inside the house dissipated when Nevarez was taken into custody outside of the

house, prior to the officers’ entry. See United States v. Gooch, 6 F.3d 673, 680 (9th

Cir. 1993); cf. United States v. Reyes-Bosque, 596 F.3d 1017, 1030 (9th Cir. 2010).


3
  The dissent, trying to “muster up” any evidence it can to suggest that grabbing the
waistband reasonably suggests that this meant that Nevarez was grabbing a gun,
criticizes us for making a factual finding not supported by the record. The dissent
is incorrect; we make this observation – not factual finding – only to illustrate that
alternative inferences can be drawn from these facts and to show that the dissent’s
suggestion, that Nevarez grabbed his waistband because he possessed a gun, is
little more than a guess.

                                          5
Indeed, it is unclear what emergency the officers could have envisioned, where—

unlike the cases cited by the Government, see Snipe, 515 F.3d 947; Black, 482 F.3d

1035—they received no call requesting emergency assistance, and where the only

person arousing their suspicions was arrested outside of the residence prior to their

entry.

         The possibility that Nevarez might have had a gun that he left inside the

house prior to his arrest is not only speculative, but, even if true, not ipso facto

sufficient to create an emergency. See Gooch, 6 F.3d at 680 (“The presence of a

firearm alone is not an exigent circumstance.”). Nor is it remarkable that a woman

might appear frightened while exiting an apartment at which the police are

pointing a gun. The fact that the police had no reason to believe that anybody

remained inside the residence—much less somebody violent or injured—undercuts

a finding of emergency. See United States v. Reid, 226 F.3d 1020, 1028 (9th Cir.

2000).

         “‘[I]f police officers otherwise lack reasonable grounds to believe there is an

emergency,’ they must ‘take additional steps to determine whether there is an

emergency that justifies entry in the first place.’” Hopkins v. Bonvicino, 573 F.3d

752, 765 (9th Cir. 2009) (alterations omitted) (quoting United States v. Russell,

436 F.3d 1086, 1092 (9th Cir. 2006)). While the officers here asked the young boy

to identify Nevarez, they never asked anybody whether there were individuals



                                            6
inside requiring immediate assistance, in part, apparently, because they assumed

that the residents might lie. Such an “inflexible assumption” cannot serve as a

substitute for reasonable grounds. Bonivert, 883 F.3d at 878. Having failed to take

additional steps to determine whether there was an emergency at hand—and

without any other facts reasonably suggesting as much—the officers’ entry was not

justified under the emergency aid exception.

          2. Protective Sweep

      A protective sweep is justified where police identify “specific and

articulable facts which, taken together with the rational inferences from those facts,

reasonably warrant[] the officer in believing that the area swept harbor[s] an

individual posing a danger to the officers or others.” Maryland v. Buie, 494 U.S.

325, 327 (1990) (internal quotation marks and citation omitted).4

      Here, the Government relies on the following facts to support the exception:

(1) a possibly armed individual had run into the unit, (2) a frightened woman had

come out, (3) both officers and bystanders could potentially be in the line of fire,

and (4) suspects fleeing police sometimes run to join dangerous accomplices.




4
 Fear for officer safety, the claimed basis for the protective sweep here, has
sometimes been characterized as falling under the exigency or emergency
exceptions. See Sandoval, 756 F.3d at 1164–65. For the purposes of this decision,
we need not decide which exception to the warrant requirement properly upholds
entry based on this fear.

                                          7
      The final two facts are not specific and articulable, but speculative and

generalized. See Granville, 222 F.3d at 1219. With respect to the remaining facts,

as discussed above, these are not sufficient to support a reasonable suspicion that

any person remained in the unit, much less a person posing danger to the officers.

See Sialoi v. City of San Diego, 823 F.3d 1223, 1237–38 (9th Cir. 2016); United

States v. Delgadillo-Velasquez, 856 F.2d 1292, 1298 (9th Cir. 1988). Nor is this a

case where officers had reason to believe that dangerous individuals associated

with the detained suspect remained inside of the house. See United States v. Hoyos,

892 F.2d 1387, 1395–97 (9th Cir. 1989), overruled on other grounds by United

States v. Ruiz, 257 F.3d 1030 (9th Cir. 2001); see also id. at 1396 n.8.

      Because there are no facts supporting a reasonable belief that there were

individuals inside the house who threatened the officers’ safety, the protective

sweep exception does not apply.

         3. Defendant’s Arrest

      Defendant argues that his arrest occurred inside the home without a warrant

or probable cause, in violation of Payton v. New York, 445 U.S. 573 (1980).

Because we find that the officers’ entry into the residence was unlawful, this issue

is moot, and we do not address it.

         4. Exclusionary Rule




                                          8
      The district court found that no Fourth Amendment violation occurred, and

as such, did not consider whether the exclusionary rule applied to the seized

evidence or to Defendant’s post-arrest statements. See United States v. Sedaghaty,

728 F.3d 885, 915 (9th Cir. 2013). In light of the general rule “that a federal

appellate court does not consider an issue not passed upon below,” remand is

appropriate to allow the district court to consider whether the exclusionary rule

applies in this case in the first instance. Singleton v. Wulff, 428 U.S. 106, 120

(1976).

REVERSED AND REMANDED.




                                           9
                                                                          FILED
United States v. Garcia, No. 17-10071+                                     SEP 13 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
WALLACE, Circuit Judge, dissenting:

      I respectfully dissent. In my view, the record supports the district court’s

conclusion that officers had an objectively reasonable basis for entering Garcia’s

residence under the emergency aid exception. I would affirm Garcia’s conviction.

                                          I.

      The emergency aid exception permits law enforcement officers to enter and

search a home without a warrant when two conditions are satisfied: “(1)

considering the totality of the circumstances, law enforcement had an objectively

reasonable basis for concluding that there was an immediate need to protect others

or themselves from serious harm; and (2) the search’s scope and manner were

reasonable to meet the need.” United States v. Snipe, 515 F.3d 947, 952 (9th Cir.

2008). In determining whether law enforcement satisfied these conditions, “[w]e

assess officers’ actions ‘from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.’” Sandoval v. Las Vegas Metro.

Police Dep’t, 756 F.3d 1154, 1163 (9th Cir. 2014) (quoting Ryburn v. Huff, 565

U.S. 469, 477 (2012)). As the Supreme Court has repeatedly emphasized, “[t]he

calculus of reasonableness must embody allowance for the fact that police officers

are often forced to make split-second judgments—in circumstances that are tense,

                                          1
uncertain, and rapidly evolving.” Ryburn, 565 U.S. at 477 (quoting Graham v.

Connor, 490 U.S. 386, 396–97 (1989)).

      In this case, although the record did not conclusively establish the existence

of an emergency situation, it did demonstrate that officers had reasonable grounds

to believe someone inside Garcia’s residence may have needed immediate

assistance. When Nevarez initially fled from police, he grabbed his waistband,

reasonably suggesting to the pursuing officer that he had a gun. The majority

claims that this gesture is “also common when the individual is wearing baggy

pants,” but Officer Lopez did not testify that the suspect was holding up baggy

pants, nor did any other witness. Only the majority has made this “factual” finding.

      After Nevarez ran into Garcia’s unit, a frightened woman came out of the

unit minutes later, “shaking, like something really horrible had happened to her,”

according to Lopez’s credited testimony. This took place in a neighborhood that

the officers knew from experience had a high incidence of violent crime. Under

these circumstances—a potentially armed suspect running through a residence in a

high-crime neighborhood in combination with a visibly frightened woman

emerging from the residence minutes later—officers had an objectively reasonable

basis for believing that someone inside the residence might well need emergency

assistance. The record was sufficient to conclude that the officers’ warrantless

entry was justified under the emergency aid exception. See Michigan v. Fisher, 558

                                          2
U.S. 45, 49 (2009) (explaining that “[o]fficers do not need ironclad proof of a

likely serious, life-threatening injury to invoke the emergency aid exception”).

      The majority attempts to undermine the urgency of the situation facing the

officers by disaggregating the record and attacking the officers’ justifications

individually. But the relevant inquiry requires us to consider the “totality of the

circumstances,” not analyze each rationale in a vacuum. This holistic consideration

makes sense given that the circumstances with which officers are confronted may

take on different meanings depending on the presence or absence of other factors.

See Ryburn, 565 U.S. at 476–77 (“[I]t is a matter of common sense that a

combination of events each of which is mundane when viewed in isolation may

paint an alarming picture.”). For example, the inferences that officers may

reasonably draw when a potentially armed suspect runs through a residence in a

neighborhood known for violent crime is much different than the reasonable

inferences that can be drawn when officers have no knowledge about the

neighborhood, or know the neighborhood is not particularly violent. In my view,

the majority’s piecemeal attack on the officers’ justifications fails to recognize the

importance of, and our obligation to, consider the circumstances in the aggregate.

      My colleagues also emphasize alternative interpretations of the

circumstances facing the officers, suggesting that the officers did not adopt the

most reasonable inferences from the situation confronting them. For example, my

                                           3
colleagues explain that once Nevarez was taken into custody outside of the house,

there was much less reason to believe there was any potential danger inside the

house. I do not deny that the majority’s interpretations may be fair ones. But

acknowledging that the majority may have reasonably reached a different

conclusion than the officers on the scene does not render unreasonable the officers’

belief that someone inside the house may have needed immediate assistance. Even

if the totality of the circumstances in this case could be interpreted multiple ways, I

would conclude that the officers’ assessment satisfied the requisite threshold level

of reasonableness. See Ryburn, 565 U.S. at 477.

                                           II.

      Finally, I think it important to point out that this case is likely one in which

the attenuation doctrine will play an important role on remand. Even if the officers’

entry into Garcia’s residence was unlawful, they did not discover the evidence used

to convict him until after learning of Garcia’s search condition. There is a real

possibility that Garcia’s search condition was an intervening circumstance

sufficient to break “the causal relationship between the unconstitutional act and the

discovery of the evidence.” Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016). The

majority correctly concludes that the district court should consider the question of

attenuation in the first instance. I write only to highlight the centrality of the

attenuation doctrine to this case.

                                            4
                                         III.

      I acknowledge that the officers’ belief that someone inside Garcia’s

residence needed immediate aid turned out to be wrong. But reasonableness in this

context is not based upon the accuracy of the officers’ belief in retrospect, but

rather on whether the circumstances confronting the officers provided an

objectively reasonable basis for entering the home without a warrant. See

Sandoval, 756 F.3d at 1163. Here, I believe that standard was satisfied. Therefore,

I respectfully dissent.




                                          5
