From United States v. Black (Apr. 10, 2007) (Kozinski, J., joined by Reinhardt, Kleinfeld, and Berzon, JJ., dissenting from denial of rehearing en banc) (some paragraph breaks added, citations deleted):
The relevant facts are undisputed. Walker called 911 at precisely 8:39:3465 A.M. from a grocery store to report that she had just been beaten by Black, who had a gun. At the end of the call, Walker indicated that she would drive back to the apartment with her mother, and that they would wait for the police outside the building in a white pick-up truck. She spoke with the dispatcher until 8:40:1749. Officer Rodriguez was dispatched at 8:42:5825, and arrived at the apartment half a minute later, at 8:43:2487. The total time elapsed between Walker hanging up with the 911 dispatcher and the arrival of the police at the apartment was three minutes and seven seconds. Rodriguez testified that it would take about two minutes to drive from the grocery store to the apartment. When Rodriguez arrived, he did not see Walker, her mother or the white truck. Walker was, at that point, just one minute past her earliest possible arrival time.
Rodriguez and another officer knocked on the apartment door, but nobody answered. The other officer circled around back and found Black in the backyard. When the officers didn't find a gun on Black, they took his key to the apartment, performed a "welfare" search of the dwelling and found the gun -- and, of course, didn't find Walker.
There was absolutely no evidence of the government's nightmare scenario that Walker lay bleeding and unconscious inside the apartment. As the 911 dispatcher's log shows, there was "not enough time for Black to somehow get Walker back into the apartment, and to injure her, and then to leave, as the government theorizes could have been the case." Nor were there any eyewitnesses, signs of a scuffle, reports of gunshots or even of a commotion. The abduction would have happened in the street, in broad daylight, yet no one saw a thing; the super, who talked to the police, reported nothing unusual.
Officer Rodriguez admitted that he had "[n]o information" that Walker was in the residence; his explanation for the warrantless entry was that "if she'd have come back to the residence, [Walker] possibly could have gotten taken . . . back into the house and stuff." If this satisfies the government's "heavy burden" to show "extraordinary circumstances" not based on "speculation," then "heavy burden," "extraordinary circumstances" and "speculation" have no meaning in these parts.
The majority gives the government a pass because "the exigencies of domestic abuse cases present dangers that, in an appropriate case, may override considerations of privacy." The problem with this approach is that the government has any number of such crises-du-jour: terrorism, child pornography, child abuse, drugs, hate crimes -- the list is endless. When confronted with such serious crimes, it is the job of the police to be suspicious; the job of the courts is to insist that police develop evidence supporting these suspicions before they defile the sanctity of the home.
In a particularly disturbing passage, the panel majority opines that "[e]rring on the side of caution is exactly what we expect of conscientious police officers." . This is entirely backwards when the cautious error involves invasion of the home. In such circumstances, we expect police to err on the other side of caution by staying out unless and until they obtain a warrant or satisfy the demanding constitutional standard for a warrantless search. The majority's unfortunate phrase will be widely seen as a green light for the police to "err on the side of caution" by breaking into people's homes based on half-baked suspicions.
When a panel of our court can find that the facts here satisfy the government's "heavy burden" for invading the home without a warrant, I despair about the future of our constitutional rights. If the right accorded the greatest protection by the Fourth Amendment -- the right to privacy of the home -- can be so casually brushed aside, no right is safe. Because my colleagues do not similarly view this issue as one of exceptional importance, I sorrowfully dissent.
From the panel majority (some paragraph breaks deleted and some added, some citations omitted):
The dissent parses the time too finely. First, the police did not have stop-watches in hand and could only approximate the elapsed times. Second, if Black had seen Walker arrive outside the building, it would take little time for him to threaten Walker with a gun and force her inside. Third, what the officers knew at the time was that Walker said she would meet them at the scene, she was not there but her attacker was, and he denied living in the apartment though he had a key to it.
These circumstances were reason enough for the officers to believe that Walker could very well be in the apartment injured. In addition, the attacker admitted that he was aware that the officers were investigating a domestic violence call. How did he know that? It could be that Walker told him earlier that she was calling the police. But a more serious alternative was also a possibility: Walker had returned and told Black that the police were on the way to which he had a violent response. The officers did not have the time to conduct a thorough examination of all the information that was available to them and to conclude, as we might after the fact, that this was an unlikely possibility.
As the dissent rightly concedes, whether the actions of the police are objectively reasonable is to be judged by the circumstances known to them. They were not conducting a trial, but were required to make an on-the-spot decision as to whether Walker could be in the apartment in need of medical help; the objective circumstances did not require them to reach the conclusion that there was little or no risk that Walker was in the apartment in danger. To the contrary, the combination of these circumstances support an objectively reasonable belief that Walker could be in the apartment.
This is a case where the police would be harshly criticized had they not investigated and Walker was in fact in the apartment. Erring on the side of caution is exactly what we expect of conscientious police officers. This is a "welfare search" where rescue is the objective, rather than a search for crime. We should not second-guess the officers objectively reasonable decision in such a case.
Our circuit has recognized that "the exigencies of domestic abuse cases present dangers that, in an appropriate case, may override considerations of privacy." While we have stopped short of holding that "domestic abuse cases create a per se exigent need for warrantless entry," we continue to evaluate, on a case-by-case basis, whether the "total circumstances, presented to the law officer before a search ... relieved the officer of the customary need for a prior warrant." Our own individualized assessment of the circumstances presented in this case leads us to the same conclusion that the district court reached: the officer's initial warrantless entry into the apartment was justified by exigent circumstance and, as a result, the subsequent seizure of Black's handgun -- this time, accomplished with warrant in hand -- was not unconstitutional under the Fourth Amendment.