FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-10640 Plaintiff-Appellee,

D.C. No.

v.  CR-04-00093-LDG

JASPER BLACK,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Nevada

Lloyd D. George, District Judge, Presiding

Argued and Submitted

September 14, 2006—San Francisco, California

Filed October 26, 2006

Before: Betty B. Fletcher and Marsha S. Berzon,

Circuit Judges, and David G. Trager,* District Judge.

Opinion by Judge Betty B. Fletcher;

Dissent by Judge Berzon

*The Honorable David G. Trager, Senior United States District Judge

for the Eastern District of New York, sitting by designation. 

17951
COUNSEL

Anne Traum, Esq., AFPD, Las Vegas, Nevada, for the

defendant-appellant. 

J. Gregory Damm, Esq., AUSA, Las Vegas, Nevada, for the

plaintiff-appellee. 

OPINION

B. FLETCHER, Circuit Judge: 

On appeal, Jasper Black challenges his conviction as a

felon in possession, arguing that the district court erred when

it denied his motion to suppress the gun. We affirm.

I.

The police justify their entry into Black’s apartment, not as

one looking for evidence of a crime but as a welfare search

occasioned by a 911 domestic violence call. Police were dispatched to the apartment after Black’s ex-girlfriend, Tyroshia

Walker, called 911 and reported that Black had beaten her up

that morning in the apartment and that he had a gun. Toward

the end of her 911 call, Walker told the dispatcher that she

intended to return to the apartment with her mother in order

to retrieve her clothing and that the two women would wait

outside the apartment, in a white Ford pickup truck, for police

to arrive. Officer Rodriguez was dispatched to the scene to

meet the women. When he arrived at the apartment a few

minutes later there were no signs of Walker, her mother, or

the truck. Rodriguez contacted Officer Kikkert, who was

already on his way to the apartment, and directed him to stop

by the grocery store from which Walker had made her phone

call. Kikkert checked the store for signs of Walker but, finding none, he continued to the apartment. 

17954 UNITED STATES v. BLACK
After Kikkert arrived at Black’s apartment, the two officers

knocked on the front door but received no response. They

then contacted the apartment manager in an attempt to gain

access to the building. In the meantime, Kikkert circled the

building to inspect the backyard area. There, he discovered an

individual who matched Black’s physical description. The

individual identified himself as Jasper Black and admitted that

he knew the police were investigating a domestic violence

call. He denied knowing the whereabouts of Walker and also

denied that he lived in the apartment. When the defendant

became agitated, one of the police officers patted him down

for weapons and searched his pockets with the defendant’s

consent, which yielded the key to the apartment. Using the

key, Rodriguez entered and made a quick sweep of the apartment to see if anyone was there. No one was present, but

Rodriguez noticed a gun on the bed. Without touching the

gun, he exited, arrested Black, and sought a warrant for the

gun. 

[1] The police were justified in their entry because they

feared that Walker could have been inside the apartment,

badly injured and in need of medical attention, and that their

warrantless search of the apartment was, therefore, justified

by exigent circumstances. As the government argued both

during the suppression hearing and on appeal, Walker could

have returned to the apartment after her 911 call, but before

police arrived at the scene. At that point, Black could have

managed to pull her back into the apartment. Once inside the

apartment, Black — in a repeat performance of his behavior

earlier that morning — could have beaten Walker again and

left her in the apartment severely injured. Even worse, he

could have shot Walker using the gun that police knew was

inside the apartment. 

The dissent would hold that the circumstances of this case

do not support an objectively reasonable belief that Walker

could be inside the apartment. It emphasizes the short time

span between Walker’s phone call and Rodriguez’s arrival on

UNITED STATES v. BLACK 17955
the scene. Because Walker was a two-minute drive from the

apartment building when she called the police, and Officer

Rodriguez arrived approximately three minutes after the call,

the dissent argues that there was not sufficient time after

Walker’s arrival for the defendant to force her into the apartment. The dissent parses the time too finely. 

[2] First, 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. Second, the times cited by the dissent are all approximate times. Rodriguez was dispatched at

approximately 8:40 and arrived at approximately 8:43. If each

approximation is off by a single minute, then Walker could

have arrived at the apartment three minutes before Rodriguez

— ample time for Black to have taken her inside the building.

We conclude that the circumstances do support an objectively

reasonable belief that Walker could be in the apartment. 

[3] 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. 

[4] Our circuit has recognized that “the exigencies of

domestic abuse cases present dangers that, in an appropriate

case, may override considerations of privacy.” United States

v. Brooks, 367 F.3d 1128, 1136 (2004). 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.” Id. 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

17956 UNITED STATES v. BLACK
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.1

[5] We affirm the district court’s decision to deny Black’s

motion to suppress and, in turn, uphold his conviction.

II.

[6] On appeal, Black also argues that the government failed

at the sentencing hearing to prove that he had a prior qualifying controlled substances offense under U.S.S.G.

§ 2K2.1(a)(2), because it never supplied the sentencing judge

with the actual statute of conviction. See United States v.

Pimentel-Flores, 339 F.3d 959, 967 (9th Cir. 2003) (“[T]he

actual statute of prior conviction must be supplied to the district court by the government whether or not anyone objects

to its absence.”). The government acknowledges the mistake,

but asks us to correct it by taking judicial notice of a

controlled-substances-related Judgment of Conviction that

was issued by a Nevada state court against Black. Appellate

1Analyzing police action under the “emergency aid” doctrine compels

the same conclusion. Under this doctrine, “law enforcement officers may

enter a home without a warrant to render emergency assistance to an

injured occupant or to protect an occupant from imminent injury.” See

Brigham City, Utah v. Stuart, 126 S. Ct. 1943, 1948 (2006). If, in the

course of doing so, an officer “discovers evidence of illegal activity, that

evidence is admissible even if there was not probable cause to believe that

such evidence would have been found.” See United States v. Martinez, 406

F.3d 1130, 1164 (9th Cir. 2005). In Brigham City, the Supreme Court held

that the emergency aid doctrine applies only if a court concludes that an

officer’s decision to enter without a warrant was objectively reasonable.

See Brigham City, 126 S. Ct. at 1948 (rejecting the argument that the officer’s subjective motivation is in any way relevant). Because this “objective reasonableness” test is essentially the same as the one courts use to

determine whether police action is justified under the “exigent circumstances” exception, we can affirm the district court’s denial of Black’s

motion to suppress under the emergency aid doctrine as well. 

UNITED STATES v. BLACK 17957
courts “generally will not consider facts outside the record

developed before the district court,” but “may take notice of

proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation

to matters at issue.” See United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248

(9th Cir. 1992) (taking judicial notice of a California court’s

final judgment). 

[7] Because Black did not object to the government’s failure to provide the statute’s citation before the district court,

we review this matter for plain error. See Pimentel-Flores,

339 F.3d at 967. In so doing, we conclude that although the

government’s error was both “actual” and “plain,” it did not

affect Black’s “substantial rights.” Id. First, Black’s prior conviction is clearly related to a controlled substances offense.

Second, if we declined to take judicial notice of the Judgment

of Conviction, we would merely be delaying the inevitable;

our next step would simply be to remand Black’s case for

resentencing. Id. at 969 (remanding to the district court for

resentencing so that the government can satisfy its burden of

“submit[ting] judicially-noticeable documents demonstrating

the prior statute of conviction”). Rather than take this unnecessary step — and in light of the fact that our decision to

avoid doing so does not affect Black’s substantial rights —

we, instead, take judicial notice of the Judgment of Conviction and affirm Black’s 110-month sentence. 

AFFIRMED. 

BERZON, Circuit Judge, dissenting: 

I dissent. Because I believe the officer’s warrantless search

of the apartment cannot be justified under the Fourth Amendment’s “exigent circumstances” exception to the warrant

17958 UNITED STATES v. BLACK
requirement, I would reverse the district court’s decision to

deny Black’s motion to suppress and overturn his conviction.1

I begin by emphasizing the “heavy burden” that the government bears when trying to prove exigent circumstances. See

United States v. Howard, 828 F.2d 552, 555 (9th Cir. 1987)

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

1985)). Exigent circumstances are “those circumstances that

would cause a reasonable person to believe that entry . . . was

necessary to prevent physical harm to the officers or other

persons, the destruction of relevant evidence, the escape of

the suspect, or some other consequence improperly frustrating

legitimate law enforcement efforts.” United States v. Brooks,

367 F.3d 1128, 1135 (9th Cir. 2004) (omission in original)

(citing United States v. McConney, 728 F.2d 1195, 1199 (9th

Cir. 1984) (en banc)). To prove that such circumstances

existed, the government cannot rely on “speculation about

what may or might have happened.” See Howard, 828 F.2d at

555. Instead, it must point to “specific and articulable facts

which, taken together with rational inferences . . . , support

the warrantless intrusion.” Id. (internal quotations omitted)

(omission in original). A court, in turn, must view the exigencies “from the totality of circumstances known to the officers

at the time of the warrantless intrusion.” Id. See also United

States v. Arellano-Ochoa, Nos. 04-30545, 05-30328, 2006

WL 2506395, at * 2 (9th Cir. Aug. 31, 2006) (“Whether exigent circumstances exist in a given case is a fact-specific

inquiry that depends on the totality of the circumstances.”). It

must consider whether, in light of these circumstances, an

officer’s decision to enter without a warrant was “objectively

reasonable.” Brooks, 367 F.3d at 1136. 

As the majority points out, our court and other circuits have

indeed recognized that domestic violence cases present a

unique set of dangers that may, at times, “override consider1Were I to reach the issue decided in Part II of the disposition, regarding

sentencing, I would agree with the majority’s conclusion. 

UNITED STATES v. BLACK 17959
ations of privacy.” Id. At the same time, there is no domestic

abuse exception to the Fourth Amendment generally, or to the

limitations on the exigent circumstances exception in particular. Instead, in those domestic violence cases where courts

have upheld a finding of exigent circumstances, the police

were presented with clear evidence that the victim was both

still in the vicinity of the abuser and still in danger. See

United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir.

2005) (“When the domestic violence victim is still in the

home, circumstances may justify an entry pursuant to the exigency doctrine.”). In United States v. Brooks, for example, we

held that exigent circumstances supported an officer’s warrantless entry into a hotel room when the officer was dispatched to the room after a guest called 911 to report “sounds

of a woman being beaten” from the room next door. 367 F.3d

at 1130. When the officer arrived, the defendant answered the

door and confirmed that a woman had been in the room, that

she had been “very loud,” and that she was now in the bathroom. Id. Faced with this set of circumstances — and considering the fact that the officer could not see or hear the woman

but could observe that the hotel room was in “total disarray”

— this court held that the officer’s decision to enter the room

without a warrant was justified “by an objectively reasonable

belief that a woman might be injured and entry was ‘necessary to prevent physical harm.’ ” Id. at 1130, 1135. See also

Martinez, 406 F.3d at 1163-64 (holding that no exigent circumstances justified a warrantless entry where police arrived

at the scene and found the domestic abuse victim already outside the home, in the front yard); United States v. Davis, 290

F.3d 1239, 1243-44 (10th Cir. 2002) (finding no exigent circumstances to justify a warrantless entry, where police

responded to a domestic disturbance call only to have the victim “appear[ ] without any signs of harm”); United States v.

Cunningham, 133 F.3d 1070, 1071-73 (8th Cir. 1998) (holding that exigent circumstances justified a warrantless search

of the home where police received a 911 call from a woman

who identified herself and claimed that she was being held

against her will and where, upon arriving at the scene, police

“could hear a woman crying inside the apartment”); Tierney

v. Davidson, 133 F.3d 189, 197 (2d Cir. 1998) (holding that

exigent circumstances justified a warrantless entry and search

of a home where the officer responded to a 911 call reporting

a domestic disturbance and, after arriving at the scene, spoke

17960 UNITED STATES v. BLACK
to neighbors who informed him “that the shouting had ended

right before his arrival,” thus allowing the officer to reasonably conclude that “both antagonists remained in the house”).

In the case before us, however, the government points to no

specific facts leading to the “objectively reasonable” belief

that Walker, following her phone call to 911, somehow found

herself back inside the apartment where Black was staying

and was therefore in need of medical assistance. Instead, all

of the facts available to the police that morning point to the

conclusion that Walker was outside the apartment, not trapped

within it. 

The police knew that, at 8:39 a.m., Walker had called the

911 dispatcher from a local grocery store. Twice, the dispatcher asked if Walker needed medical assistance; twice,

Walker refused. At the end of the conversation, Walker told

the dispatcher that her mother was with her and that, together,

they would return to the apartment on 804 J Street. She

informed the dispatcher that she would stay outside the apartment. 

The first officer arrived at 804 J Street, about three minutes

after Walker called 911. He testified during the evidentiary

hearing that it would have taken him about two minutes to

drive from the grocery store to the apartment. Even assuming

that Walker left the store immediately after she got off the

phone with the 911 dispatcher and that she immediately

headed to 804 J Street, she still would have only arrived back

at the apartment about one minute before the police. That is

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. Further, at no

point during his time outside the apartment, even immediately

upon his arrival, did the first officer hear any noises coming

from inside the residence. 

UNITED STATES v. BLACK 17961
The majority argues that this timeline of the morning’s

events somehow errs by relying — seemingly, too much —

on the evidence supported by the record. And yet, these are

the facts before us and the facts upon which we must rely to

make our decision. To be sure, none of the information here

affirmatively confirms exactly where Walker was after she

made her 911 call. Neither, however, does it constitute the

kind of “specific and articulable facts” that, when “taken

together with rational inferences” would “support the warrantless intrusion.” Howard, 828 F.2d at 555. Instead, the government’s arguments amount to no more than insufficient

“speculation.” Id.2

For these reasons, I respectfully dissent.

2Unlike the majority, I find the government’s argument equally unconvincing when considered under the “emergency aid doctrine.” Both the

emergency aid doctrine and the exigent circumstances exception require

an “objective reasonableness” analysis. Because police actions that morning were no more “objectively reasonable” under the emergency aid doctrine exception than they were under the exigent circumstances exception,

I believe that their argument under this alternative exception to the Fourth

Amendment’s warrant requirement fails as well. 

17962 UNITED STATES v. BLACK