FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-50403

Plaintiff-Appellee, D.C. No.

v. 3:07-cr-03238-

VQH-1 JUAN HERMAN LEMUS,  Southern District of Defendant-Appellant.

California,

San Diego

ORDER 

Filed February 18, 2010

Before: Ronald M. Gould, Johnnie B. Rawlinson and

Jay S. Bybee, Circuit Judges.

Order;

Dissent by Chief Judge Kozinski

ORDER

A judge of this court sua sponte called for this case to be

reheard en banc. A vote was taken, and a majority of the

active judges of the court did not vote for a rehearing en banc.

Fed. R. App. P. 35(f). The call for this case to be reheard en

banc is DENIED. 

Chief Judge KOZINSKI, with whom Judge PAEZ joins, dissenting from the denial of rehearing en banc:

This is an extraordinary case: Our court approves, without

blinking, a police sweep of a person’s home without a war2529
rant, without probable cause, without reasonable suspicion

and without exigency—in other words, with nothing at all to

support the entry except the curiosity police always have

about what they might find if they go rummaging around a

suspect’s home. Once inside, the police managed to turn up

a gun “in plain view”—stuck between two cushions of the living room couch—and we reward them by upholding the

search. 

Did I mention that this was an entry into somebody’s home,

the place where the protections of the Fourth Amendment are

supposedly at their zenith? The place where the “government

bears a heavy burden of demonstrating that exceptional circumstances justif[y] departure from the warrant requirement.”

United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985).

The place where warrantless searches are deemed “presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586

(1980). 

Government encroachment into the home, which I

lamented three years ago in United States v. Black, 482 F.3d

1044, 1045-46 (9th Cir. 2007) (Kozinski, J., dissenting from

the denial of rehearing en banc), has continued, abetted by the

creative collaborators of the courts. This is another example:

The panel goes to considerable lengths to approve a fishing

expedition by four police officers inside Lemus’s home after

he was arrested just outside it. The opinion misapplies

Supreme Court precedent, conflicts with our own case law

and is contrary to the great weight of authority in the other

circuits. It is also the only case I know of, in any jurisdiction

covered by the Fourth Amendment, where invasion of the

home has been approved based on no showing whatsoever.

Nada. Gar nichts. Rien du tout. Bupkes. 

Whatever may have been left of the Fourth Amendment

after Black is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Amer2530 UNITED STATES v. LEMUS
icans consider their castles is pretty much complete. Welcome

to the fish bowl. 

1. The panel approves the entry of a team of police into

Lemus’s home by relying on Maryland v. Buie, 494 U.S. 325

(1990), but Buie is nowhere on point. Buie was a case where

the police were already legitimately inside the home when

they arrested the suspect. Id. at 328. The question was

whether they could look in the area immediately adjoining the

arrest where someone who could ambush them might be hiding. Id. at 328, 330, 333. The Court recognized that police

inside an arrestee’s home are peculiarly vulnerable because

they are on the suspect’s turf—a place where someone dangerous might be hiding. Id. at 333-36. The risk is present in

every case because a suspect’s home is inherently dangerous

for police who must enter to make an arrest. Id. But Buie says

nothing at all about police who conduct an arrest outside of

the home. It does not authorize police to enter a home for the

very purpose of conducting a search. That is the situation we

have here. 

Lemus was in his side yard when Detectives Longoria and

Diaz called out that they were there to arrest him. Two patrol

officers arrived at the scene just as Lemus started to back

slowly towards his living room door. After he opened it,

“[t]he officers were there in an instant, taking hold of Lemus

and handcuffing him before he could fully enter the doorway

and retreat into his living room.” United States v. Lemus, 582

F.3d 958, 960 (9th Cir. 2009). Note: They grabbed him and

had him handcuffed “before he could fully enter the doorway”

and before he could “retreat into his living room.” Instead of

walking away with the handcuffed Lemus in tow, the officers

entered the apartment and had a good look around. “Checked

the bedroom and bathroom too.” Id. The detectives then went

into the living room, where Longoria found a gun. Id. at

960-61. 

The panel says the police could enter the home—with no

suspicion whatsoever—because Lemus’s living room “immeUNITED STATES v. LEMUS 2531
diately adjoined” the place surrounding the arrest, Lemus, 582

F.3d at 964, but Buie only authorizes a suspicionless search

when the police make an “in-home arrest” (and then only for

a small area near the arrest, not a grand tour of the entire

apartment). 494 U.S. at 333-36. Here there was no in-home

arrest. How do we know this? Because the opinion says so:

After making the arrest, Longoria “sent” the patrol officers

“in” to Lemus’s apartment. Lemus, 582 F.3d at 960. Officers

who are already inside an apartment don’t need to be sent in.

The entire justification Buie gives for a warrantless search

is that officers must be able to protect themselves when they

perform an “in-home arrest.” Buie, 494 U.S. at 333-34 & n.1

When an arrest doesn’t take the police into a suspect’s home,

they aren’t forced into the “confined setting of unknown configuration” that Buie worries about. Id. at 333. They’re outside, just the same as in an “on-the-street or roadside

investigatory encounter.” Id. Yet “[e]ven in high crime areas,

where the possibility that any given individual is armed is significant,” the Court still requires “reasonable, individualized

suspicion” before police can perform a search. Id. at 334 n.2.

The panel’s fig leaf for this clearly illegal search is that “at

most Lemus was only partially outside” of his living room

door when the officers seized him. Lemus, 582 F.3d at 963.

So what? Under Buie, Lemus’s location at the time of arrest

is irrelevant; it’s the location of the police that matters. Buie

authorizes a search incident to an in-home arrest because

being inside a suspect’s home “puts the officer at the disadvantage of being on his adversary’s ‘turf,’ ” 494 U.S. at 333

(emphasis added), where the officer has more to fear than in

an “on-the-street-encounter[ ].” Id. at 334 n.2. If the police

surround a suspect’s home, guns drawn, and order him out—

and he complies—may the police go rummaging through his

home without suspicion because the suspect was arrested

when he was inside? Surely not.

Whatever portion of Lemus’s body may have gotten into

his living room, the officers seized and handcuffed him with2532 UNITED STATES v. LEMUS
out themselves entering. Lemus, 582 F.3d at 960. Here is how

Longoria testified about the arrest: 

Q: Okay. Now when you arrested Mr. Lemus, he

was standing in front of the sliding glass door? 

A: No, he had—he had stepped back into the sliding

glass door. He had just broken the threshold pretty

much.

Q: So he wasn’t in the apartment, he was just inside

the door? 

A: No, he was inside the apartment. He had stepped

back into the apartment breaking the threshold into

the apartment, and that is where we immediately

grabbed up [sic] him before he could make it into

one of the rooms there. 

(emphasis added). [ER 42] Note the emphasis on “breaking

the threshold;” this was a well-coached witness. But what his

testimony makes clear is that the officers were not required

to go inside Lemus’s home to arrest him; they chose to go

inside, unnecessarily exposing themselves to the very danger

the Supreme Court sought to ameliorate in Buie. The district

court’s findings and Longoria’s affidavit confirm this. [ER

10-11, 14, 60]

Warrantless searches have “always been considered to be

a strictly limited right . . . grow[ing] out of the inherent necessities of [certain] situation[s].” Chimel v. California, 395 U.S.

752, 759 (1969) (internal quotation marks omitted). The

“scope” of a warrantless search “must therefore be strictly

defined in terms of the justifying ‘exigent circumstances.’ ”

Coolidge v. New Hampshire, 403 U.S. 443, 478 (1971). The

Buie exception is particularly toxic to Fourth Amendment values because it permits a search with zero individualized

suspicion—with nothing at all but the presumption that the

UNITED STATES v. LEMUS 2533
home is a dangerous place for the police. This is a fair presumption if the police are already inside the home and

exposed to danger. But to use the exception as a wedge for

entering the home turns Buie inside out. 

2. We’ve dealt with an arrest made just outside the home

before. In United States v. Paopao, 469 F.3d 760 (9th Cir.

2006), we upheld a search of an apartment after officers

arrested a man in the hallway right outside, but only because

the officers had “a reasonable suspicion of danger.” Id. at 766

(citing Buie, 494 U.S. at 335-36). The opinion nowhere cites

Paopao. It’s not because the panel wasn’t aware of the case—

both parties cited it in their briefs. 

The panel quotes instead from an older case, United States

v. Hoyos: “A bullet fired at an arresting officer standing outside a window is as deadly as one that is projected from one

room to another.” 892 F.2d 1387, 1397 (9th Cir. 1989), overruled on other grounds by United States v. Ruiz, 257 F.3d

1030, 1032 (9th Cir. 2001) (en banc). Yet Hoyos required the

arresting officers to articulate reasonable suspicion that they

might be shot from inside the apartment. Id. at 1397-98. The

panel here allows a search without any suspicion. Merging

Hoyos and Buie, as the panel does, allows police to search an

arrestee’s home without suspicion, so long as the arrest is

within a rifle shot of the home. 

No other circuit allows entry into the home on less than

reasonable suspicion. E.g., United States v. Lawlor, 406 F.3d

37, 39, 41 (1st Cir. 2005) (entry through an open door to

search the home after an “arrest that occurs just outside the

home” requires reasonable suspicion); United States v.

Cavely, 318 F.3d 987, 994-96 (10th Cir. 2003) (arrest “just

outside of the back door”); United States v. Colbert, 76 F.3d

773, 776-77 (6th Cir. 1996) (“just outside a home”); United

States v. Henry, 48 F.3d 1282, 1284 (D.C. Cir. 1995) (“just

outside the open door”); United States v. Oguns, 921 F.2d

2534 UNITED STATES v. LEMUS
442, 445-47 (2d Cir. 1990) (“just outside of [defendant’s]

apartment”). 

The panel cites not one case that stands for the contrary

proposition. Its cases from the Second, Seventh and D.C. Circuits all involved arrests inside, not outside, the home. Peals

v. Terre Haute Police Dep’t, 535 F.3d 621, 624-25, 628 (7th

Cir. 2008) (arrest occurred inside defendant’s garage); United

States v. Thomas, 429 F.3d 282, 287-88 (D.C. Cir. 2005)

(inside apartment); In re Sealed Case 96-3167, 153 F.3d 759,

762-63, 770 (D.C. Cir. 1998) (inside bedroom); United States

v. Lauter, 57 F.3d 212, 213, 216-17 (2d Cir. 1995) (inside

apartment). The Fifth Circuit case it cites, United States v.

Charles, 469 F.3d 402, 405-06 (5th Cir. 2006), involved a

storage unit, not a home. 

3. How has it come to this? There’s a simple answer: Plain

view is killing the Fourth Amendment. Because our plainview case law is so favorable to the police, they have a strong

incentive to maneuver into a position where they can find

things in plain view, or close enough to lie about it. 

This is a case in point. While the officers were finishing

their room-to-room sweep of Lemus’s apartment, apparently

finding no one and nothing suspicious, the detectives entered

as well. Yet Buie permits only a sweep for people who might

be dangerous. Once the officers found no one in the living

room, what authorized entry by the detectives? There was

absolutely no reason for the detectives to enter except to try

to find contraband in “plain view.” So, the detectives went in

and, while there, Diaz thought he saw “something sticking out

from the couch” that “looked like the butt of a weapon.”

Lemus, 582 F.3d at 960. Longoria then lifted the couch cushion “to make sure” and found a gun. Id. at 961. Under what

theory of “plain view” may police lift cushions off a couch to

make sure something is contraband? Why weren’t the officers

required to get a warrant—if they could—based on what they

saw, before rummaging through the couch? 

UNITED STATES v. LEMUS 2535
If the officers and detectives had truly feared for their

safety, they would certainly have moved away from Lemus’s

apartment once they took him into custody. Instead, they did

the very thing that Buie says puts a police officer in danger:

They went inside a suspect’s home. They didn’t just peek

either, which might be consistent with a claim that they were

checking to make sure they could retreat unmolested. The

officers swept every room; Longoria and Diaz hung out in the

living room long enough to study Lemus’s couch and dig

through its cushions. The officers clearly took advantage of

Lemus’s arrest to conduct a leisurely search of his home looking for contraband. The story that the officers went inside to

protect their safety is so transparently contrived that my colleagues can’t even tell it with a straight face. Id. at 960-61. 

These officers were never at risk from anyone within the

apartment, and they knew it. Longoria and Diaz had been to

Lemus’s apartment before and knew he lived alone. There

wasn’t any evidence Lemus had an accomplice in the crime

the police thought he had committed. Before arresting him,

Longoria and Diaz watched his apartment for over an hour,

beginning in the early morning, but they saw no one go in or

out until Lemus emerged and walked over to his mother’s

house. And when they finally saw Lemus walking back to his

apartment—the time when the detectives sprung into action—

he was alone. 

The part of the story where Lemus was arrested with one

foot inside the door was never mentioned by the detectives

until the suppression hearing. It was not in the probable cause

statement supporting the warrant application (which was

obtained after the officers had already gone digging through

the couch cushions) or in the two-and-a-half-page narrative

report Longoria prepared about the arrest. [ER 30, 42-43] It

was a detail conveniently—but not very convincingly—added

when they realized the search was no good and thought this

(irrelevant) fact might redeem it. 

2536 UNITED STATES v. LEMUS
Plain view encourages the police to find every possible

loophole to get themselves into a place where they can take

a good look around, discover some evidence and then get a

warrant to seize what they already know is there. This tiresome two-step is the new dropsy evidence. As often as not,

the chance of hitting the plain-view jackpot is what drives the

police into a man’s house, his doctor’s office or his ISP. Carefully drawn limitations in a warrant and narrow justifications

for exceptions to the warrant requirement are becoming afterthoughts. “Police officer safety,” the narrow justification in

Buie, had nothing to do with this search. Gathering evidence

did. We should not abet such skirting of the Fourth Amendment by the police; it only encourages them to do worse. 

UNITED STATES v. LEMUS 2537