FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-30463 Plaintiff-Appellee,

D.C. No.

v.  3:05-CR-00068-HA

RIAN TYLER STRUCKMAN,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, Senior District Judge, Presiding

Argued and Submitted

December 10, 2009—Portland, Oregon

Filed May 4, 2010

Before: Jerome Farris, Dorothy W. Nelson and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

6633
COUNSEL

Jacob Wieselman, Lake Oswego, Oregon, for the defendantappellant.

Kent S. Robinson, Assistant United States Attorney, Portland,

Oregon, for the plaintiff-appellee.

OPINION

BERZON, Circuit Judge:

Around midday on December 7, 2004, three uniformed

police officers entered the fenced-in backyard of a private

home in a residential neighborhood of Portland. Guns drawn,

but without a warrant, one scaled the fence and another

kicked open a padlocked gate leading into the backyard. The

only information the officers had at that time was (1) a call

from a neighbor reporting that the owners were at work and

that a white male wearing a black jacket, age unknown, had

thrown a red backpack over the fence and climbed into the

backyard; and (2) their visual confirmation that a red backpack was lying against a porch in the backyard and that the

person they saw in the yard, who turned out to be the appellant, Rian Struckman, was a white male wearing a black

jacket, which he allowed to fall to the ground after being confronted by the officers. The officers’ first statements to

UNITED STATES v. STRUCKMAN 6637
Struckman were to order him to get down on the ground.

Struckman’s first statement to the officers was that he lived

at the house. As it turned out, he did, but the officers only

found that out after Struckman was arrested and after they had

searched the backpack, finding an unloaded handgun. By that

point, the officers had also learned that Struckman was a former felon, however, and arrested him as a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). He was

ultimately found guilty in a jury trial of that crime and sentenced to 17 years in prison.

Struckman appeals the district court’s denial of his motions

to suppress and his sentence. We conclude that the police officers’ warrantless actions violated Struckman’s Fourth

Amendment rights. We therefore reverse the district court’s

order denying Struckman’s motion to suppress the handgun

found in the backpack and, because the gun was critical to

Struckman’s conviction, vacate the resulting conviction.

I. Background

On December 7, 2004, at approximately 11:45 a.m., Wendy

Grimes called 911 and reported that she saw a white male

wearing a black leather or vinyl jacket throw a red backpack

over her neighbors’ fence and then climb over the fence into

their backyard. Ms. Grimes also stated that her neighbors

were not at home and, although she indicated a suspicion the

man was trying to break into her neighbors’ house, she also

said she could not see what he was doing through her neighbors’ fence.

The dispatcher sent three police officers to investigate the

report, directing them to the home and telling them only that

“[a] white male climbed the fence on the west side. White

guy, black leather jacket, red backpack. Residents not there at

this point.”

Officers Mudrick and Wilson arrived at the house first.

Officer Mudrick approached a padlocked gate leading into the

6638 UNITED STATES v. STRUCKMAN
backyard on the east side of the house. Officer Wilson

approached the west side of the house. The backyard was

entirely enclosed by a six foot tall fence. Officer Mudrick

climbed atop an object positioned next to the gate to get a better view while Officer Wilson peeked into the yard through a

small hole in the fence.

Officer Wilson saw Struckman, who fit the description of

the person given by the 911 dispatcher—“[w]hite guy, black

leather jacket”—walking inside the backyard. He also saw a

red backpack lying next to a deck in the yard. At this same

time, on the other side of the house, Officer Mudrick saw

Struckman walk around the back of the house in his direction.

He saw no signs of any forced entry into the house. As

Struckman turned the corner, he noticed Officer Mudrick staring at him from over the top of the fence. With a look of surprise, he stopped walking.

The following events took place over a span of roughly 25

seconds: Officer Mudrick testified that once Struckman saw

him, he immediately “took off his jacket . . . and let it fall to

the ground.” Officer Wilson’s testimony was slightly different: Struckman “shook” his “leather jacket off his shoulders”;

it “just sort of fell down his arms.” Officer Wilson also testified that Struckman’s hands remained “down by . . . his thighs

. . . as [his] jacket dropped down.” Both officers testified that

Struckman did not attempt to run and had nothing on him at

that point other than his shirt and pants. In particular, he had

no visible weapons or burglary tools.

Officer Mudrick drew his firearm and pointed it at Struckman straightaway, ordering him to get down on his knees.

Struckman complied without hesitation. Officer Mudrick then

reholstered his firearm and climbed over the fence into the

backyard. During this time, Officer Wilson, who had also

drawn his firearm, moved to the east side of the house. Officer Mudrick, who was now inside the yard, drew his firearm

again, approached Struckman, and began to handcuff him. At

UNITED STATES v. STRUCKMAN 6639
this time, Officer Singh arrived at the house and immediately

kicked open the padlocked gate leading into the backyard.

Both he and Officer Wilson then entered the backyard to help

Officer Mudrick finish handcuffing Struckman and search the

area.1

According to Officers Mudrick’s and Wilson’s testimony,2

after Officer Mudrick climbed into the backyard, Struckman

began cursing sporadically and repeatedly stated that he lived

at the house.3 Struckman also requested that Officer Mudrick

use his cell phone to call his mother to confirm that he lived

at the house. Officer Mudrick ignored Struckman’s request,

however, and proceeded to conduct a pat down search. During

this time, Struckman’s behavior alternated between cooperative and aggressive; on one or two occasions Struckman tried

to pull away from Officer Mudrick’s grip.4 As a result, Officer

Mudrick forced Struckman to the ground to complete the pat

down search, at which time he felt a long, hard object in

Struckman’s front right pants pocket. He opened the pocket

and discovered an unloaded handgun magazine. Officer

Mudrick then completed the search and asked Struckman

whether there was a gun inside the red backpack, which was

lying approximately 20 to 25 feet away at this time. Officer

Mudrick testified, and the district court found, that Struckman

replied, “I don’t know, it’s not mine.” Struckman, on the other

hand, testified at trial that he also stated, “It’s my sister’s

bag.”

1At some point, one of the officers informed the dispatch: “Got a gun

on that guy. Burglar.” 

2Neither Struckman nor Officer Singh testified at the suppression hearing. 

3The district court found that Struckman stated that he lived at the house

before Officer Mudrick climbed over the fence. That finding is not supported by the record, however, as both Officers Mudrick and Wilson testified that Struckman did not state that he lived at the house until after

Officer Mudrick was inside the backyard. 

4Struckman testified at trial that he was high on methamphetamine at

this time.

6640 UNITED STATES v. STRUCKMAN
After Officer Mudrick discovered the unloaded magazine,

Officer Wilson went to the red backpack and lifted a flap that

was on the top of it. He saw the butt of a handgun and

retrieved the gun from the backpack. There was no magazine

in the gun.

Officer Mudrick eventually asked Struckman his name.

Struckman gave his true name and stated that he was currently

on probation. Officer Mudrick then ran a criminal history

check, revealing that Struckman was on probation and did in

fact live at the house.

After he was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1),

Struckman moved to suppress the handgun found in the backpack, arguing that the officers’ warrantless arrest and entry,

and their subsequent search of the backpack, violated his

Fourth Amendment rights.5 The district court held an evidentiary hearing on the suppression motion and denied it.

The government filed a Notice of Sentence Enhancement

under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).6

Following a jury trial, Struckman was found guilty of being

a felon in possession of a firearm, and sentenced to 17 years

in prison.

5Struckman subsequently moved to suppress the statement he made in

the backyard concerning the backpack, arguing that the police officers

failed to issue Miranda warnings. Because we conclude that the officers’

warrantless arrest and entry violated Struckman’s Fourth Amendment

rights, we do not reach the Miranda issue. 

6

18 U.S.C. § 924(e)(1) provides, in pertinent part, that “[i]n the case of

a person who violates section 922(g) of this title and has three previous

convictions by any court referred to in section 922(g)(1) of this title for

a violent felony or a serious drug offense, or both, committed on occasions

different from one another, such person shall be fined under this title and

imprisoned not less than fifteen years . . . .” 

UNITED STATES v. STRUCKMAN 6641
II. Discussion

[1] The Fourth Amendment protects “[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures . . . .” U.S.

Const. amend. IV. “At [its] very core stands the right of a

[person] to retreat into his own home and there be free from

unreasonable governmental intrusion.” Silverman v. United

States, 365 U.S. 505, 511 (1961). For that reason, “searches

and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586

(1980). The presumptive protection accorded people at home

extends to outdoor areas traditionally known as “curtilage” —

areas that, like the inside of a house, “harbor[ ] the intimate

activity associated with the sanctity of a [person’s] home and

the privacies of life.” United States v. Dunn, 480 U.S. 294,

300 (1987) (quotations omitted).

This presumptive Fourth Amendment protection “is not

irrebuttable.” Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th

Cir. 2009), cert. denied, Bonvicino v. Hopkins, No. 09-681,

2010 WL 1265866, at *1 (U.S. April 5, 2010). In particular,

“[t]here are two general exceptions to the warrant requirement

for home searches: exigency and emergency.” United States

v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005). We have

described these exceptions as follows:

The “emergency” exception stems from the police

officers’ “community caretaking function” and

allows them “to respond to emergency situations”

that threaten life or limb; this exception does “not

[derive from] police officers’ function as criminal

investigators.” United States v. Cervantes, 219 F.3d

882, 889 (9th Cir. 2000) (emphasis added). By contrast, the “exigency” exception does derive from the

police officers’ investigatory function; it allows them

to enter a home without a warrant if they have both

probable cause to believe that a crime has been or is

6642 UNITED STATES v. STRUCKMAN
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.” United States v. McConney, 728 F.2d 1195, 1199 (9th Cir. 1984) (en banc).

Hopkins, 573 F.3d at 763. To succeed in invoking these

exceptions, “the government must . . . show that a warrant

could not have been obtained in time.” United States v. Good,

780 F.2d 773, 775 (9th Cir. 1986). Here, the government does

not invoke the emergency exception, but does argue that exigent circumstances justified the officers’ warrantless arrest

and entry into Struckman’s backyard.

Before evaluating whether there were exigent circumstances, we note that the district court upheld the officers’

warrantless search and seizure under Terry v. Ohio, 392 U.S.

1 (1968). That was error, as the Terry exception to the warrant

requirement does not apply to in-home searches and seizures.

E.g., Martinez, 406 F.3d at 1165 (“[T]he usual rules pertaining to Terry stops do not apply in homes.”). Commendably,

the government does not defend the district court’s suppression ruling on Terry grounds. 

As a result of its Terry approach, the district court did not

decide whether Struckman’s backyard is curtilage subject to

Fourth Amendment protection. That, however, is an issue we

may decide de novo on the record before us. United States v.

Davis, 530 F.3d 1069, 1077 (9th Cir. 2008). The district court

did decide, in the alternative, that the police officers had probable cause to arrest Struckman for “committing some crime

against the residence” and that exigent circumstances justified

the officers’ entry into the backyard “because they were

responding to a 911 call of a potential burglary in progress.”

We review both determinations de novo. Id.; see United

States v. Russell, 436 F.3d 1086, 1089 n.2 (9th Cir. 2004). We

UNITED STATES v. STRUCKMAN 6643
address the issues of curtilage, probable cause, and exigent

circumstances, in turn.

A.

[2] The Fourth Amendment’s protections extend to those

areas in which a person has a “reasonable” expectation of privacy, Smith v. Maryland, 442 U.S. 735, 740-41 (1979) (quotation omitted); “an individual reasonably may expect that an

area immediately adjacent to a home will remain private.”

Oliver v. United States, 466 U.S. 170, 180 (1984). “[C]ourts

have [therefore] extended Fourth Amendment protection to

the curtilage” to a home, id., defining the extent of the curtilage with reference to four factors: “the proximity of the area

claimed to be curtilage to the home, whether the area is

included within an enclosure surrounding the home, the

nature of the uses to which the area is put, and the steps taken

by the resident to protect the area from observation by people

passing by.” Dunn, 480 U.S. at 301. 

[3] “[F]or most homes, the boundaries of the curtilage will

be clearly marked; and the conception defining the curtilage

—as the area around the home to which the activity of home

life extends—is a familiar one easily understood from our

daily experience.” Oliver, 466 U.S. at 182 n.12. Struckman’s

backyard—a small, enclosed yard adjacent to a home in a residential neighborhood—is unquestionably such a “clearly

marked” area “to which the activity of home life extends,”

and so is “curtilage” subject to Fourth Amendment protection.

See United States v. Romero-Bustamente, 337 F.3d 1104,

1108 (9th Cir. 2003).

B.

The government asserts that probable cause alone justifies

Struckman’s warrantless arrest and the police officers’ subsequent entry into his backyard. That is plainly incorrect. “It is

clearly established Federal law that the warrantless search of

6644 UNITED STATES v. STRUCKMAN
a dwelling must be supported by probable cause and the existence of exigent circumstances.” Bailey v. Newland, 263 F.3d

1022, 1032 (9th Cir. 2001) (emphasis added).

The government also asserts, alternatively, that exigent circumstances excused the officers’ warrantless arrest and entry.

“[W]hen the government relies on the exigent circumstances

exception [to the Fourth Amendment warrant requirement], it

. . . must satisfy two requirements: first, the government must

prove that the officer had probable cause to search the house;

and second, the government must prove that exigent circumstances justified the warrantless intrusion.” United States v.

Johnson, 256 F.3d 895, 905 (9th Cir. 2001) (en banc) (per

curiam) (citation omitted); see also Welsh v. Wisconsin, 466

U.S. 740, 740 (1984).

1.

[4] “There is probable cause for a warrantless arrest and a

search incident to that arrest if, under the totality of the facts

and circumstances known to the arresting officer, a prudent

person would have concluded that there was a fair probability

that the suspect had committed a crime.” United States v.

Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984). “[P]robable

cause ‘demands’ factual ‘specificity’ and ‘must be judged

according to an objective standard,’ ” Johnson, 256 F.3d at

905 (quoting Terry, 392 U.S. at 21-22 n.18), taking into

account “the nature and trustworthiness of the evidence of

criminal conduct available to the police,” Beier v. City of

Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004). In assessing

probable cause, we take into account reasonable inferences.

See, e.g., Davis, 530 F.3d at 1084.

Relying on the 911 report, the officers’ initial sighting of

Struckman, and Struckman’s reaction to seeing Officer Mudrick, the government asserts that the officers had probable

cause to arrest Struckman for either burglary in the first

degree, attempted burglary in the first degree, or criminal tresUNITED STATES v. STRUCKMAN 6645
pass in the second degree. The government also relies on

Officer Mudrick’s testimony that he believed, based on the

911 report, that he was investigating a burglary or attempted

burglary. 

Officer Mudrick’s subjective beliefs are immaterial to our

inquiry: “Probable cause is an objective standard[,] and the

officer’s subjective intention in exercising his discretion to

arrest is immaterial in judging whether his actions were reasonable for Fourth Amendment purposes.” John v. City of El

Monte, 515 F.3d 936, 940 (9th Cir. 2008) (citation omitted);

see Brigham City, Utah v. Stuart, 547 U.S. 398, 404-05

(2006). 

[5] We have little difficulty concluding that the officers did

not have probable cause to arrest Struckman for first-degree

burglary or attempted burglary. Under Oregon law, 

[a] person commits the crime of burglary in the first

degree if the person violates O[r.] R[ev.] S[tat.] [§ ]

164.215 and the building is a dwelling, or if in

effecting entry or while in a building or in immediate

flight therefrom the person: (a) Is armed with a burglary tool or theft device . . . or a deadly weapon; (b)

Causes or attempts to cause physical injury to any

person; or (c) Uses or threatens to use a dangerous

weapon. 

Or. Rev. Stat. § 164.225(1). A person violates Or. Rev. Stat.

§ 164.215, Oregon’s second-degree burglary statute, “if the

person enters or remains unlawfully in a building with intent

to commit a crime therein.” In addition, a person is guilty of

an attempt to commit a crime in Oregon if the person “intentionally engages in conduct which constitutes a substantial

step toward commission of the crime.” Or. Rev. Stat.

§ 161.405(1).

6646 UNITED STATES v. STRUCKMAN
[6] Here, it is undisputed that upon arriving at the house,

the officers knew only that a neighbor had reported seeing a

white male wearing a black jacket throw a red backpack over

a fence and climb over the fence into the backyard when the

owners were reportedly not home. Officer Mudrick testified

that there were no indications that Struckman had entered or

attempted to enter the home, as there were no signs of forced

entry or the presence of any tools consistent with a possible

burglary. Additionally, Struckman’s presence in the backyard

and his reaction to abruptly seeing Officer Mudrick, unannounced and peering over his six-foot tall fence—stopping,

looking surprised, and shrugging off or allowing his jacket to

fall to the ground—have no bearing on whether Struckman

was attempting a burglary at the home.7

[7] The conclusion that the officers certainly did not have

probable cause to believe that Struckman was engaged in

first-degree burglary or attempted burglary does not end our

inquiry, however. “Because the probable cause standard is

objective, probable cause supports an arrest so long as the

arresting officers had probable cause to arrest the suspect for

any criminal offense, regardless of their stated reason for the

arrest.” Edgerly v. City and County of San Francisco, Nos.

05-15080, 05-15382, 2010 WL 986764, at *4 (9th Cir. March

19, 2010). We therefore consider whether the totality of the

7

It is unclear why Struckman shrugged off his jacket. He may have done

so because his jacket pockets contained methamphetamine, a “digital gram

scale,” and a second unloaded gun magazine. Or, as Officer Mudrick testified, Struckman may have shrugged off his jacket in order to fight or flee,

free of an encumbrance. Or, as Struckman testified at trial, he may have

simply “slipped his arm out of [his jacket]” because “with the way that

[his] jacket was [hanging off one arm at the time], when [he] went to go

put up [his] arms, [he] thought it might create an obstruction.” In any

event, Struckman’s intention does not matter. Our inquiry is limited to

determining whether the objective facts and circumstances before the officer are sufficient to warrant a person of reasonable caution to believe that

there was a fair probability that the suspect had committed a crime. Gonzales, 749 F.2d at 1337. 

UNITED STATES v. STRUCKMAN 6647
facts and circumstances support probable cause that Struckman was engaged in another crime. The only alternative

offense the government suggests is second-degree criminal

trespass. 

A person commits criminal trespass in the second degree in

Oregon if he “enters or remains unlawfully . . . in or upon

premises,” Or. Rev. Stat. § 164.245(1), where premises are

defined as “includ[ing] any building and any real property,

whether privately or publically owned,” Or. Rev. Stat.

§ 164.205(6). A person enters or remains unlawfully if he or

she “enter[s] or remain[s] in or upon premises when the premises, at the time of such entry or remaining, are not open to

the public or when the entrant is not otherwise licensed or

privileged to do so[.]” Or. Rev. Stat. § 164.205(3)(a). 

Here, the officers came to the house because of information

obtained from the 911 call—namely, that a white male wearing a black jacket had thrown a red backpack over a fence and

climbed into the backyard when the homeowners were reportedly not home. They then visually confirmed that a person

who fit the description was in the backyard and that there was

a red backpack lying against a deck inside the yard.8 To that

point, the officers were engaging in good police practice.

Assuredly, “police officers ha[ve] a duty to conduct an investigation into the basis of [a] witness’ report.” Fuller v. M.G.

8Once again, the government brings up Struckman’s surprised expression upon seeing Officer Mudrick peering at him from over the top of his

six-foot tall fence, arguing that it supports probable cause that Struckman

was trespassing in the backyard. That fact, regardless whether one views

it as innocuous or suspicious with regard to possible exigency, has little

to do with whether Struckman “enter[ed] or [was] remain[ing] unlawfully”

on someone else’s property in violation of Or. Rev. Stat. § 164.245.

Indeed, one would think almost any resident of a house would be quite

surprised to see a policeman peering at him over his fence while he was

in his backyard. Likewise, as to Struckman’s shrugging off or discarding

his jacket, whether or not it is pertinent to the exigency issue, see infra,

it in no way supports the conclusion that Struckman had no legal right to

be where he was. 

6648 UNITED STATES v. STRUCKMAN
Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991). There was no

surface reason to discredit that Ms. Grimes saw what she said

she saw, or knew what she said she knew.9 So the fact that the

police officers went to the house in response to Ms. Grimes’s

911 report to look around the area and, perhaps, ask questions

was consistent with what citizens expect from law

enforcement—efforts to assure that they and their property are

safe from unlawful, injurious acts by others. 

At the same time, Ms. Grimes’s report was very general;

she did not say that she knew who all the occupants of the

house were; and innocent reasons could have explained what

she did see, including the actual explanation—a family member who lived at the house did not have his key. Indeed, many

of us can recount tales about getting locked out of his or her

own house, or the house of a relative where one is staying,

and having to devise some creative way to get into the house.

[8] To avoid such errors as occurred here, in seeking to

establish probable cause, “officers may not solely rely on the

claim of a citizen witness . . ., but must independently investigate the basis of the witness’ knowledge or interview other

witnesses.” Arpin v. Santa Clara Valley Transp. Agency, 261

F.3d 912, 925 (9th Cir. 2001); see Hopkins, 573 F.3d at 767

(“[S]tatements from a witness, without further investigation

by the police, are insufficient to support probable cause.”). In

circumstances similar to those here, for example, we have

held that officers did not have probable cause to enter a home

without a warrant based on “information provided by [a]

neighbor [that] suggested that unauthorized people may be in

[a] house,” where there was no sign of a break-in. Frunz v.

City of Tacoma, 468 F.3d 1141, 1144 (9th Cir. 2006). We

have also determined that “officers did not have probable

cause to enter [a] house based merely on a neighbor’s report

9We note that in Oregon a person may be criminally liable for knowingly initiating and transmitting a false report to the police. See Or. Rev.

Stat. § 162.375. 

UNITED STATES v. STRUCKMAN 6649
of suspicious activity and an open door,” id. at 1146 n.9 (citing Murdock v. Stout, 54 F.3d 1437, 1441 (9th Cir. 1995)), or

where a witness was outside the suspect’s house and told the

officers only “that she had been involved in a[ ] [ ] minor car

accident with [the suspect], that she smelled alcohol on his

breath, and that he appeared intoxicated,” Hopkins, 573 F.3d

at 767.

As in Frunz and Hopkins, “[t]here was, in fact, much else

the officers could have done” to investigate the reported activity. Frunz, 468 F.3d at 1146. Officer Mudrick testified that he

had received “[n]o details as to who resided at th[e] residence.” But Ms. Grimes had contact with one of the officers

after he arrived at the scene, so the officers could have “ask-

[ed] [her] . . . questions in order to gain information beyond

her cursory and conclusory statements.” Hopkins, 573 F.3d at

767. Such quick inquiries of Ms. Grimes might have determined who in fact lived at the house and why she thought the

person seen climbing over the fence was not authorized to be

there.10

More importantly, the officers could have asked Struckman

a few simple questions, such as “What’s your name?” “Do

you live here?” “What are you doing in the backyard?”

Instead, immediately after first making eye contact with

Struckman, Officer Mudrick drew his firearm and ordered

Struckman to get on the ground, and the officers surged into

the backyard, with one officer climbing over the fence and

another kicking open the padlocked gate. The officers then

ignored Struckman’s repeated protestations that he lived at the

house and his request that the officers call his mother to confirm his statement, even though they could have learned that

10The 911 transcript indicates that Ms. Grimes initially reported the

wrong address and pointed out the correct one to at least one of the officers after he had arrived in the area.

6650 UNITED STATES v. STRUCKMAN
he did in fact live there by checking his identification against

records easily available to them.11

[9] The officers did have reasonable suspicion—a “reasonable, articulable suspicion that criminal activity is afoot,” Illinois v. Wardlow, 528 U.S. 119, 123 (2000)—that Struckman

was trespassing. But reasonable suspicion is not probable

cause, and it alone cannot excuse a warrantless arrest inside

a private home or its curtilage. Absent some confirmation that

Struckman was not authorized to be in the backyard, it is

doubtful that the totality of the facts and circumstances here

establish that there was a fair probability that Struckman was

trespassing in the backyard. 

[10] Nonetheless, no amount of probable cause can justify

a warrantless arrest or entry absent an exception to the warrant requirement. See Horton v. California, 496 U.S. 128, 137

n.7 (1990); LaLonde v. City of Riverside, 204 F.3d 947, 954

(9th Cir. 2000). We will assume—although the assumption is

weak—that the officers had probable cause to believe that

Struckman was engaged in criminal trespass when they

arrived.

2.

[11] As previously mentioned, the government relies on

the exigency exception, as opposed to the emergency exception, to justify the officers’ warrantless actions here. The exigent circumstances exception is premised on “few in number

and carefully delineated” circumstances, United States v.

United States District Court, 407 U.S. 297, 318 (1972), in

which “ ‘the exigencies of the situation’ make the needs of

law enforcement so compelling that the warrantless search is

11Officer Mudrick testified at the suppression hearing that the officers

on the scene had computers in their patrol cars and radios attached to their

uniforms that they could have used to call dispatch to determine whether

Struckman lived at the house. 

UNITED STATES v. STRUCKMAN 6651
objectively reasonable under the Fourth Amendment.” Brigham City, 547 U.S. at 403 (quoting Mincey v. Arizona, 437

U.S. 385, 393-94 (1978)). We have previously defined those

situations as (1) the need to prevent physical harm to the officers or other persons, (2) the need to prevent the imminent

destruction of relevant evidence, (3) the hot pursuit of a fleeing suspect; and (4) the need to prevent the escape of a suspect. See, e.g., Fisher v. City of San Jose, 558 F.3d 1069,

1075 (9th Cir. 2009) (en banc) (safety); United States v.

Ojeda, 276 F.3d 486, 488 (9th Cir. 2002) (safety, escape, and

evidence); Johnson, 256 F.3d at 907 (hot pursuit). Because

the Fourth Amendment ultimately turns on the reasonableness

of the officer’s actions in light of the totality of the circumstances, Brigham City, 547 U.S. at 403, however, there is no

immutable list of exigent circumstances; they may include

“ ‘some other consequence improperly frustrating legitimate

law enforcement efforts.’ ” Fisher, 558 F.3d at 1075 (quoting

United States v. Lindsey, 877 F.2d 777, 780 (9th Cir. 1989)).

“The government bears the burden of showing specific and

articulable facts to justify the finding of exigent circumstances.” Ojeda, 276 F.3d at 488.

The government suggests that this case involved the exigent circumstances of hot pursuit, escape, and the prevention

of harm to the officers or other persons.12 None of these circumstances actually existed when Struckman was arrested in

the backyard. 

12The government does not defend the district court’s determination that

the 911 call alone created exigent circumstances because the police officers were responding to a potential burglary in progress. As previously

discussed, the officers, were not responding to a report of a potential burglary in progress, only a report that a white male wearing a black jacket

and carrying a red backpack had climbed over a fence into the backyard

of a home while the homeowners were not there. Although Ms. Grimes

told the 911 dispatcher that she suspected that the person was going to

commit a burglary, she could not see into the yard to confirm that suspicion, and the dispatcher did not relay that speculative presumption to the

officers. 

6652 UNITED STATES v. STRUCKMAN
[12] First, “ ‘hot pursuit’ means some sort of a chase.”

Santana, 427 U.S. at 42-43. There was no chase here—no

“pursuit” of Struckman, hot or cold. Struckman was already

inside the backyard when the police officers arrived at the

house. Although the officers entered the yard to handcuff

Struckman and take him into custody, they were not chasing

him; Struckman immediately stopped walking through the

backyard when he saw the officers, and he then complied with

their orders. Those same facts make clear that Struckman

made no attempt to escape the yard. Indeed, Officer Mudrick

expressly testified that Struckman made no attempt to flee.

[13] Likewise, contrary to the government’s suggestion

that the general public was in danger, the record contains no

evidence that anyone other than the officers and Struckman

was near the fully enclosed backyard, let alone put in danger

by the occurrences therein. Nor was the police officers’ entry

into the backyard necessary to prevent harm to themselves.

The government points to Struckman’s reaction upon seeing

the officers as suggesting some element of danger—he looked

surprised and took off his jacket. Again, anyone, residents

included, would be surprised at seeing a uniformed police

officer peering at them inside their private, enclosed backyard

from over the top of a six-foot fence. Surprise does not suggest a threat. 

Even if Struckman intentionally took off his jacket after

seeing Officer Mudrick—a point on which the record is

murky—that conduct, peculiar as it may have seemed to the

officers at that time, does not support an objectively reasonable basis for believing that the police officers’ reaction—

immediately drawing their firearms and entering the enclosed

backyard—was necessary to prevent imminent physical harm

to themselves while they remained outside the yard. In fact,

Officer Mudrick testified that after Struckman’s jacket fell to

the ground, he was able to see Struckman’s body clearly and

saw no visible weapons on him. Additionally, Officer Wilson

UNITED STATES v. STRUCKMAN 6653
testified that Struckman’s arms remained down at his sides

after he shed his jacket. 

In support of its contention that the exigency exception is

applicable here, the government relies heavily on Officer

Mudrick’s testimony that once Struckman shed his jacket, he

believed that Struckman intended to flee or fight the officers

free of an encumbrance. As previously discussed, however, an

officer’s subjective motivation for his actions is irrelevant in

determining whether his actions are reasonable under the

Fourth Amendment. See, e.g., Brigham City, 547 U.S. at 404

(string citation omitted). Likewise, conjecture about “what

may or might have happened” is insufficient to satisfy the

government’s “heavy burden” of proving exigent circumstances. United States v. Howard, 828 F.2d 552, 555 (9th Cir.

1987) (quoting United States v. Licata, 761 F.2d 537, 543 (9th

Cir. 1985)). “It therefore does not matter here—even if their

subjective motives could be so neatly unraveled—whether the

officers entered the [backyard] to arrest [Struckman] and

gather evidence against [him] or to . . . prevent . . . violence.”

Brigham City, 547 U.S. at 405.

[14] Moreover, Officer Mudrick’s belief that Struckman’s

shedding of his jacket meant that he was preparing to fight the

officers assumes an intent to enter Struckman’s yard, but does

not explain or justify it. And there is an additional consideration here that strongly supports the conclusion that there was

no exigency: Although “[a] warrantless arrest of an individual

in a public place for . . . a misdemeanor committed in the officer’s presence[ ] is consistent with the Fourth Amendment if

the arrest is supported by probable cause,” Maryland v.

Pringle, 540 U.S. 366, 370 (2003) (emphasis added), “it is

difficult to conceive of a warrantless home arrest that would

not be unreasonable under the Fourth Amendment when the

underlying offense is extremely minor.” Welsh, 466 U.S. at

753 (emphasis added). For that reason, “this circuit has

clearly held that ‘an exigency related to a misdemeanor will

seldom, if ever, justify a warrantless entry into the home.’ ”

6654 UNITED STATES v. STRUCKMAN
Hopkins, 573 F.3d at 769 (quoting LaLonde, 204 F.3d at 956);

see Johnson, 256 F.3d at 909 n.6 (“[I]n situations where the

underlying offense is only a misdemeanor, law enforcement

must yield to the Fourth Amendment in all but the ‘rarest’

cases.”) (quoting Welsh, 466 U.S. at 753). For example, we

have held that an investigation into the whereabouts of a person who had been resisting arrest, a misdemeanor, did not justify a warrantless entry onto private property. Johnson, 256

F.3d at 908-09. We have also held that the need to obtain a

blood sample from a person suspected of driving under the

influence, a misdemeanor, before the alcohol in his blood dissipated, was insufficient to justify a warrantless home entry.

Hopkins, 573 F.3d at 768-89.

[15] Here, even if the police officers had probable cause to

believe that Struckman was committing criminal trespass in

the second degree in violation of Or. Rev. Stat. § 164.245, the

offense is a Class C misdemeanor, see id., carrying with it a

maximum of 30 days imprisonment, Or. Rev. Stat. § 161.615.

And, while we recognize that “the exigency analysis must

turn on ‘the gravity of the underlying offense,’ . . . not its status as ‘jailable’ or ‘nonjailable,’ ” Hopkins, 573 F.3d at 768

(emphasis in original) (quoting Welsh, 466 U.S. at 753), “the

penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State’s

interest in arresting individuals suspected of committing that

offense.” Welsh, 466 U.S. at 754 n.14. The 30-day maximum

penalty attached to second-degree criminal trespass weighs

against any finding of exigency. Cf. Hopkins, 573 F.3d at

768-69 (holding that the exigency exception did not justify a

warrantless home intrusion where the offense was a violation

of Cal. Veh. Code § 23152, a misdemeanor that carried with

it a six month maximum penalty). 

[16] In addition, while the commission of a misdemeanor

offense is not to be taken lightly, it militates against a finding

of exigent circumstances where the offense, like the criminal

trespass at issue here, is not inherently dangerous. We have

UNITED STATES v. STRUCKMAN 6655
held, for example, that police officers violate tenants’ Fourth

Amendment rights if they enter the tenants’ apartment without

a warrant based solely on the landlord’s report that the tenants

were trespassing. See King v. Massarweh, 782 F.2d 825, 828

(9th Cir. 1986). Further, “[o]ne suspected of committing a

minor offense would not likely resort to desperate measures

to avoid arrest and prosecution,” United States v. George, 883

F.2d 1407, 1413 n.3 (9th Cir. 1989), so any inference of danger or escape from the commission of the offense alone is not

reasonable.13

[17] In a case closely analogous to this one, the Sixth Circuit concluded that “[t]here is simply no legal support for

holding that an ongoing criminal trespass, on its own, constitutes an exigency that overrides the warrant requirement.”

United States v. Washington, 573 F.3d 279, 287 (6th Cir.

2009). We agree. The risk from an ongoing crime can sometimes make a critical difference in determining the reasonableness of police conduct. See Georgia v. Randolph, 547

U.S. 103, 126 (2006) (Breyer, J., concurring) (discussing

instances of domestic abuse); see also United States v. Hensley, 469 U.S. 221, 228 (1985). But in the absence of any “immediate and serious consequences,” McDonald v. United

States, 335 U.S. 451, 460 (1948) (Jackson, J., concurring),

resulting from the commission of a crime, the “overriding

respect for the sanctity of the home that has been embedded

in our traditions since the origins of the Republic,” Payton,

445 U.S. at 601, militates against warrantless entry.

[18] Finally, there is the consideration here that even if the

officers had probable cause to believe that Struckman was

trespassing when they first saw him—which, as we said, we

doubt but are willing to assume for present purposes—that

13By contrast, where there is probable cause to suspect a burglary,

police officers “have no idea who might be inside [the home] and may reasonably assume that the suspects will, if confronted, flee or offer armed

resistance.” Frunz, 468 F.3d at 1145. 

6656 UNITED STATES v. STRUCKMAN
probable cause could easily have been dissipated by minimal

inquiry at the outset, before the officers entered the backyard

and searched and questioned Struckman. Cf. Radvansky v.

City of Olmsted Falls, 395 F.3d 291, 305 (6th Cir. 2005)

(“Police officers may not make hasty, unsubstantiated arrests

with impunity, nor simply turn a blind eye toward potentially

exculpatory evidence known to them in an effort to pin a

crime on someone.”) (internal quotation marks omitted). Any

such inquiry would have promptly revealed that Struckman

actually lived at the house and was not trespassing, let alone

attempting to commit a burglary. Moreover, “as far as the

record reveals, [instead of immediately drawing their firearms, seizing Struckman, and entering the backyard,] the officers might easily have secured the premises and sought a

warrant permitting them to enter.” Randolph, 547 U.S. at 126

(Breyer, J., concurring). 

For all these reasons, “[i]f we were to permit a warrantless

. . . [arrest and] entry under these circumstances, which were

not urgent or life threatening, the effect would certainly

undercut making ‘the presumption of unreasonableness . . .

difficult to rebut,’ ” Washington, 573 F.3d at 289 (second

alteration in original) (quoting Welsh, 466 U.S. at 750), and

would strip tenants and homeowners of much of the protection “against unnecessary intrusions [o]nto [their] private

[property],” Welsh, 466 U.S. at 748, provided by the Fourth

Amendment warrant requirement.

C.

[19] We emphasize that “Fourth Amendment rights are

personal rights which, like some other constitutional rights,

may not be vicariously asserted.” Alderman v. United States,

394 U.S. 165, 174 (1969). In other words, “[t]o claim the protections of the Fourth Amendment, defendants must demonstrate that they had an expectation of privacy in the property

searched and that their expectation was reasonable.” United

States v. Reyes-Bosque, 596 F.3d 1017, 1026 (9th Cir. 2010).

UNITED STATES v. STRUCKMAN 6657
Thus, had Struckman been an actual trespasser, he would not

be able to claim the protections of the Fourth Amendment

with regard to his arrest in the backyard. See United States v.

Hernandez-Gonzalez, 608 F.2d 1240, 1246 (9th Cir. 1979).

As a result, the net effect of our holding is only that police

officers must either obtain a warrant or consent to enter before

arresting a person inside a home or its curtilage or make a reasonable attempt to ascertain that he is actually a trespasser

before making the arrest. That easily could have been done

here by asking Struckman to identify himself, a step one

would ordinarily expect from the police where trespass is suspected.

III. Conclusion

[20] The police officers’ warrantless seizure of Struckman

within his backyard and their entry into the yard to perfect his

arrest, violated the Fourth Amendment.14 We therefore reverse

the district court’s denial of the suppression motion. As the

introduction of the evidence obtained as a result of the officers’ warrantless actions was critical to Struckman’s conviction, and the government does not contend that any error in

failing to suppress it was harmless, we also vacate the judgment of the conviction.

REVERSED and VACATED.

14Because we conclude that the police officers’ warrantless arrest and

entry violated Struckman’s Fourth Amendment rights, we need not reach

the other issues raised on appeal. 

6658 UNITED STATES v. STRUCKMAN