Brooks v. City of Fresno

Filed 10/23/08 Brooks v. City of Fresno CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Donald S. Black, Judge.

David R. Greifinger and Howard A. Goldstein for Plaintiffs and Appellants.

Weakley, Ratliff, Arendt & McGuire, James D. Weakley, Rosemary T. McGuire and Michael R. Linden for Defendant and Respondent.

-ooOoo-

Plaintiffs Michael Brooks (Brooks) and Kimmie Brown were inside an apartment, along with their children -- Michael Brooks, Jr., Mikayla Brooks, Javanta Evans, Mister Brooks, Markesa Evans, Jerry Whitehead, Terry Whitehead, and Alphonso Davis (collectively plaintiffs). Brown rented the apartment and lived there with her children. Brooks and his children were spending the night at the apartment, with Browns consent.

Fresno police officers came to the front door and explained to Brooks and Brown that a man they were chasing ran into the apartment and they needed to search the apartment to locate him. The officers also explained that if consent were not given, the officers would forcibly enter the apartment. Brooks and Brown repeatedly refused to consent to a search of the apartment.

The officers forced entry into the apartment approximately 40 minutes after observing the man enter the apartment. A scuffle ensued and the officers used less than lethal force to subdue Brooks. The man was not found in the apartment.

Plaintiffs sued, alleging various causes of action arising from the forcible entry into the apartment and for injuries sustained by Brooks after the officers entered the apartment. The jury returned a verdict in favor of the City of Fresno.

Plaintiffs contend the trial court erred in instructing the jury that if it concluded exigent circumstances existed at the time of the entry into the apartment, then the officers conduct was lawful. Plaintiffs argue that the instruction was erroneous because, as a matter of law, there were no exigent circumstances present when the officers forcibly entered the apartment. We agree.

FACTUAL SUMMARY

The facts are not in dispute.

On June 19, 2005, at approximately 11:51 p.m., Fresno Police Officers Benjamin Barnes and Ignacio Ruiz were on patrol in southwest Fresno. At the time, Barnes and Ruiz were members of Fresnos southwest District Crime Suppression Team (DCST). DCST is a proactive unit whose mission includes gang suppression and narcotics investigation.

Ruiz, with Barnes as the passenger, drove his patrol vehicle to the parking lot of the apartment complex where plaintiffs lived. The apartment complex consisted of four adjoining small, single-story apartments numbered 101 through 104, fronted by a carport and parking lot. Each of the apartments shared a common attic, and DCST officers knew that the common attic could be used to crawl from one apartment to another.

The parking lot of the apartment complex is commonly known to DCST as the Corner Pocket. At this parking lot, there is a posted sign stating that the drinking of alcoholic beverages, loitering, trespassing, or gambling is in violation the Fresno Municipal Code.

Upon arrival, the officers shined a spotlight into the parking lot. Ruiz noticed at least two people loitering in the parking lot. Barnes observed a Black male wearing a light-colored T-shirt, blue jeans, and a white cap on his head. Ruiz noticed that this man was holding a can of beer, in violation of the municipal code. Upon seeing the police car, the man started running away. While doing so, the man poured out the contents of the can and then dropped it. The officers got out of the patrol vehicle, identified themselves as police officers, and commanded the man to stop. Barnes chased the man when he ignored the order.

Ruiz got into the patrol vehicle, drove out of the parking lot area, and attempted to locate both Barnes and the fleeing man. Ruiz located Barnes, who had lost sight of the man in the interim. After Barnes got into the patrol vehicle, the officers saw the man running back towards the apartment complex. The officers pursued the man a second time. From the patrol vehicle the officers saw the man enter an apartment as he was closing the rear sliding glass door.

Barnes got out of the patrol vehicle and Ruiz drove around to the front of the apartment to gain containment. Barnes called for additional units to assist in the perimeter and to contain the apartment. Computerized records establish that this first call related to the chase was made at 11:51 p.m. Based on officer safety concerns, the officers did not enter the apartment immediately to arrest the man. Barnes watched the rear sliding glass door and saw someone looking out the rear window several times. Barnes could not identify this person.

Ruiz took approximately seven seconds to drive around to the front of the apartment complex. From his observations, Ruiz concluded the man had run into apartment number 102. Barnes independently determined the man ran into apartment 102 by counting the air conditioning units and sliding glass doors.

Ruiz then activated the overhead emergency lights and placed the police spotlight on the front of apartment 102. A female voice from inside the apartment told Ruiz to Turn those motherfucking lights off. Ruiz attempted to explain to the woman that someone had run inside of her apartment. She responded by saying, I dont give a fuck. Call your fucking sergeant out here. At 11:54 p.m., Ruiz asked Sergeant David Ramos to come to the location.

Officers Christopher Aranas and Mark Bishop arrived at the scene at 11:58 p.m. They stopped at the rear of the apartment complex. Aranas was ordered to come to the front of apartment 102. Barnes followed and made contact with Ruiz and Aranas.

Aranas knocked on the front door of apartment 102 several times but did not receive a response. Aranas then knocked on a front bedroom window of the apartment. A woman, later identified as Brown, responded and asked Aranas what was going on and who the officers were. Aranas identified himself as a police officer and told Brown they were looking for someone who had run inside of her apartment. Aranas asked Brown to provide her name, but she refused. Aranas asked Brown who was in charge of the apartment, to which Brown responded that it was not any of his business. Aranas asked Brown who was inside the apartment. Brown became rude and angry.

Eventually, Brooks came to the window. Aranas told Brooks the officers were looking for someone who had run inside of the apartment. Having learned there were children in the apartment, Aranas asked Brooks how many children were inside of the apartment. Brooks stated there were six children inside, ages 4 to 14.

During this conversation, Brown slipped back and forth through the curtain several times. Brown stated they had returned home from the coast approximately 20 minutes prior to the arrival of the officers. Aranas asked Brown whether she locked her apartment door when they left, and she said yes. Aranas asked whether there was anyone inside the apartment when they returned, and Brown stated there was not. Aranas asked Brown and Brooks to allow the officers to search their apartment to make sure no one was hiding from them or the officers, but they refused.

At 12:15 a.m., Ramos arrived at the scene. Ramos spoke with Barnes and Ruiz. Ramos knew it was possible for an individual to attempt to escape by accessing a common attic area and was aware the man already might have escaped.

Ramos then walked up to the bedroom window and directed Aranas to take a position at the rear of the apartment. Ramos then spoke with Brooks through the bedroom window. Brooks told Ramos the officers would not be allowed to enter, and that it was his position the officers had no right to do so. Ramos explained to Brooks that Barnes and Ruiz had attempted to detain a man drinking in public and that when the officers approached him, he ran from them. Brooks stated he was not going to allow the officers to enter because they did not have a warrant. Ramos then explained to Brooks that because the man had run inside of Brookss apartment to avoid detention, the officers had a legal right to enter the apartment.

During this conversation, Brooks was hostile and verbally abusive towards Ramos. Ramos noticed Brooks drinking a beer and smelled the odor of alcohol. Ramos also noticed that Brookss mood would range between being quiet and being very agitated, which raised the possibility that Brooks was under the influence of a controlled substance. When Ramos asked Brooks if he had been drinking or using drugs, Brooks replied, Man, you dont need to know about me.

Ramos explained to Brooks that the officers needed to come inside of the apartment to check for the man who was observed running inside through the back door. Brooks replied that because nobody was inside of the apartment, and the officers did not have a warrant, they were not going to be allowed inside. Ramos again explained to Brooks that the reason for entering the apartment was to search for the man. Brooks replied by stating, Ill fuck you up if you come in here.

Ramos told Brooks he wanted to resolve the issue peacefully, and if Brooks allowed the officers to come inside to make sure that the subject was not inside, the officers would leave. Brooks replied, if you come in my apartment, youll be sorry. Ill fuck you up. Youre the sergeant. Im telling you. Ramos told Brooks that if nobody was in the apartment, then there should not be an issue with the officers entering the apartment to look for the man. Brooks responded by stating that the officers should not attempt forced entry or they would be sorry. Ramos stated the officers needed to come into the apartment and would use force if necessary. Ramos also told Brooks that if he attempted to fight with the officers, he would be arrested.

Ramos explained to Brown the reason why the officers needed to enter her apartment. Brown told Ramos the officers needed a warrant to enter the apartment because they did not receive a call involving her apartment. Ramos told Brown the officers had a legal right to enter her apartment. Brown stated she wanted to speak to a sergeant, to which Ramos replied that he was a sergeant.

Based on the actions of Brown and Brooks, it appeared to Ramos the man might be concealed inside their apartment. Ramos spoke with Ruiz again. Ruiz stated that he contained the area immediately after observing the man run inside the apartment.

Ramos next spoke with Brooks, who was drinking from a bottle of beer. Brooks continued to be argumentative and again threatened to resort to violence. Ramos told both Brooks and Brown that he wanted to resolve the issue peacefully and made a request to check the apartment for the man. Ramos explained that he did not want to see anyone injured, and the safest course of action would be to allow access to the apartment. Brooks replied that if the officers forced entry, they would pay a price.

Ramos made a decision to force entry into the apartment. The breaching tools were shown to Brooks and Brown in an attempt to convince them to permit a search of the apartment. Brooks and Brown again refused to permit the officers to search the apartment.

Barnes, Ruiz, Ramos, and Bishop forced entry into the apartment at 12:32 a.m. with their guns drawn. During the forced entry, Aranas stood next to the bedroom window where Brooks was located. Aranas had his taser pointed at Brooks to prevent Brooks from interfering with the entry. After the entry, Aranas was called inside by Ramos.

The officers ordered everyone to come out. Brooks came out of the bedroom cursing and pointing at the officers. Brooks was ordered to come into the living room area, turn around, and get on his knees. According to the officers, Brooks did not comply fully and made threatening gestures. During the subsequent confrontation, Brooks was tasered three times, shot three times in the leg with a beanbag shotgun, and kicked three times. Eventually, Brooks was subdued and handcuffed. Brooks immediately was escorted out of the apartment and transported to University Medical Center (UMC) for treatment.

Meanwhile, Ruiz and Bishop escorted the remaining occupants out of the apartment so that it could be searched. The officers then performed a search for the man. This search included the attic area that was common to the apartment complex. The man was not inside the apartment, but it appeared to Aranas the attic area recently had been accessed.

Aranas and Bishop then went to UMC where they met Ruiz and Ramos. At UMC, Brooks was still yelling, using profanity, and appeared to be under the influence of alcohol or a stimulant. A blood sample was obtained from Brooks at approximately 2:05 a.m. The sample was negative for drugs or alcohol. Brooks was held in the Fresno County Jail for two days and then released.

PROCEDURAL SUMMARY

Plaintiffs filed suit against the City of Fresno, Ramos, Aranas, Ruiz, and Barnes for negligence, negligent infliction of emotional distress, and violation of civil rights under Civil Code sections 51.5, 51.7 and 52.1.^[1] Brooks brought additional actions for assault and battery and false imprisonment.

The trial court dismissed plaintiffs discrimination claims under sections 51.5 and 51.7 and the claims for negligent infliction of emotional distress by Brown and her children upon defendants motion for summary adjudication. Plaintiffs do not appeal this ruling. Plaintiffs voluntarily dismissed the officers as individual defendants at the close of trial in exchange for a stipulation that the City of Fresno would be vicariously liable for the officers actions. The plaintiffs also voluntarily dismissed their cause of action for false imprisonment.

The trial court dismissed claims for intentional infliction of emotional distress by Brown and her children. The trial court also dismissed the claim under section 52.1 by one of the children, Pheland Evans, because he was not present at the scene, leaving Pheland without any surviving causes of action. The remaining claims for negligent infliction of emotional distress were merged into the negligence claims in the special verdict form.

As a result of the above rulings and motions, only the following causes of action were submitted to the jury: (1) negligence for all plaintiffs, except Pheland Evans; (2) negligent infliction of emotional distress (bystander claims) for Michael Brooks, Jr., and Mikayla Brooks (Brookss children); (3) battery by peace officer for Brooks; (4) intentional infliction of emotional distress for Brooks, Michael, Jr., and Mikayla; (5) civil rights violation -- excessive force in detention ( 52.1) for Brooks; and (6) civil rights violation -- warrantless entry into home (ibid.) for all plaintiffs, except Pheland.

The jury returned a verdict in favor of the City of Fresno. The jurys findings, as indicated in the special verdict, were (1) the plaintiffs failed to prove that any officer was negligent; (2) the officers did not use unreasonable force in detaining and overcoming the resistance of Brooks; (3) the officers conduct was not outrageous; (4) the officers did not use excessive force in detaining Brooks; (5) Brooks did not reasonably believe that if he exercised his right to be free from excessive force, an officer would not commit violence against him; and (5) exigent circumstances existed at the time of the entry into the apartment, thus excusing the need for the officers to obtain a warrant. Judgment was entered accordingly.

DISCUSSION

This case requires that we consider the exigent circumstance exception to the Fourth Amendment warrant requirement. Exigent circumstances are emergency or dangerous situations that justify a warrantless entry into a residence. (Payton v. New York (1980) 445 U.S. 573, 583.) The most common examples of exigent circumstances are hot pursuit of a fleeing felon, or imminent destruction of evidence, [citation], or the need to prevent a suspects escape, or the risk of danger to the police or to other persons inside or outside the dwelling. [Citation.] (Minnesota v. Olson (1990) 495 U.S. 91, 100 (Olson).)

I. The Entry Violated the Fourth Amendment

The trial court instructed the jury as follows:

The defendant claims that a search warrant was not required. To succeed, defendants must prove, first, that the officers had probable cause to believe a suspect had committed an offense in their presence; second, that the suspect fled from the officers to defeat an otherwise lawful detention or arrest; third, that the officers were in hot pursuit of the suspect at the time of entry into plaintiffs apartment and a reasonable officer would have believed that, under the circumstances, there was not enough time to get a search warrant because entry was necessary to prevent the escape of the suspect; and fourth, that the search was reasonable under the circumstances.

In deciding whether the search was reasonable, you should consider, among other factors, the following:

First, the gravity of the offense, although a minor offense does not preclude a finding of exigency.

Second, the extent of the particular intrusion.

Third, the place in which the search was conducted.

Fourth, the manner in which the search was conducted.

And fifth, the amount of force used.

The Fourth Amendment requires law enforcement officers to obtain a warrant before entering a citizens home unless exigent circumstances exist. Exigent circumstances may exist where an arrest or detention based on probable cause is begun in a public place, but the suspect retreats into a private place in an attempt to thwart the arrest or detention. A suspect may not defeat an otherwise lawful arrest and detention thats been set in motion in a public place by escaping into a private place.

The necessity to forestall imminent escape of a suspect [into a] private location is known as the hot pursuit exception to the warrant requirement. The fact that the officers did not immediately follow the suspect inside of the apartment does not remove the exigency. However, the length of time may be a factor.

Plaintiffs do not contend the instruction was an incorrect statement of the law. Instead, they contend the instruction was inapplicable to the facts of this case because, as a matter of law, the evidence was insufficient to show that exigent circumstances existed when the officers forced entry into the apartment. Since the officers entered the apartment approximately 40 minutes after the man was observed going into it, any exigency that initially may have existed had expired. Plaintiffs also contend the offenses were not felonies and thus hardly qualify as crimes worthy of a warrantless entry.

We begin our analysis by noting the officers had probable cause to arrest the man because they personally observed him violating a municipal ordinance, and he resisted arrest or obstructed the officers in performing their duty when he fled after being told to stop. (Pen. Code,  148.) It also is clear the man fled to a private area to thwart his detention or arrest, specifically Browns apartment.

Under these circumstances, the officers could, consistent with the Fourth Amendment, have entered the apartment in pursuit of the man. (United States v. Santana (1976) 427 U.S. 38, 43 [a suspect may not defeat an arrest which has been set in motion in a public place, by the expedient of escaping to a private place].) Although the offenses committed by the fleeing man were not felonies, this does not preclude a finding of exigent circumstances. (See People v. Lloyd (1989) 216 Cal.App.3d 1425, 1430.)

The issue is whether exigent circumstances existed when the officers forcibly entered the apartment some 40 minutes after the officers lost sight of the man in the apartment. The City of Fresno relies on the hot pursuit exception to the Fourth Amendments warrant requirement.

The hot pursuit exception to the warrant requirement only applies when officers are in immediate and continuous pursuit of a suspect from the scene of the crime. [Citations.] In addition, the critical time for determining whether any exigency exists is the moment the officer makes the warrantless entry. (U.S. v. Johnson (9th Cir. 2001) 256 F.3d 895, 907 (Johnson).) In analyzing this issue, we are cognizant that, As with all exceptions to the warrant requirement, the courts must ever be on their guard to keep the hot pursuit justification within firm and narrow bounds: the exception must not be permitted to swallow the rule [citation]. (People v. Escudero (1979) 23 Cal.3d 800, 811 (Escudero).) Relevant cases lead us to conclude that the City of Fresnos reliance on the hot pursuit exception is misplaced.

In Welsh v. Wisconsin (1984) 466 U.S. 740 (Welsh),the Supreme Court focused on the gravity of the offense leading to the warrantless entry into the home. Welsh had been observed driving his vehicle in a reckless manner, eventually driving off the road and into a field. The police were called, but Welsh abandoned his vehicle and walked away before the officers arrived at the crash site. The officers checked the registration for the vehicle and determined the vehicle belonged to Welsh and that he lived within walking distance of the abandoned vehicle. The officers drove to Welshs house, gained entry, and arrested Welsh for driving under the influence of alcohol, a noncriminal violation subject to a civil forfeiture (fine) of up to $300. (Id. at pp. 742-743.)

The Supreme Court began by restating the general principles underlying the Fourth Amendment, emphasizing the right of the people to be free from warrantless searches of their homes. The Supreme Court also stated the police bear a heavy burden in attempting to justify a warrantless entry into a home. (Welsh, supra, 466 U.S. at pp. 749-750.) The Supreme Court next considered the effect of an arrest for a minor offense.

Our hesitation in finding exigent circumstances, especially when warrantless arrests in the home are at issue, is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. [Citation.] When the governments interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.

This is not a novel idea. Writing in concurrence in McDonald v. United States (1948) 335 U.S. 451, Justice Jackson explained why a finding of exigent circumstances to justify a warrantless home entry should be severely restricted when only a minor offense has been committed: Even if one were to conclude that urgent circumstances might justify a forced entry without a warrant, no such emergency was present in this case. This method of law enforcement displays a shocking lack of all sense of proportion. Whether there is reasonable necessity for a search without waiting to obtain a warrant certainly depends somewhat upon the gravity of the offense thought to be in progress as well as the hazards of the method of attempting to reach it. It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it. While I should be human enough to apply the letter of the law with some indulgence to officers acting to deal with threats or crimes of violence which endanger life or security, it is notable that few of the searches found by this Court to be unlawful dealt with that category of crime. While the enterprise of parting fools from their money by the numbers lottery is one that ought to be suppressed, I do not think its suppression is more important to society than the security of the people against unreasonable searches and seizures. When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant. [Citation.]

Consistently with this approach, the lower courts have looked to the nature of the underlying offense as an important factor to be considered in the exigent-circumstances calculus. In a leading federal case defining exigent circumstances, for example, the en banc United States Court of Appeals for the District of Columbia Circuit recognized that the gravity of the underlying offense was a principal factor to be weighed. [Citation.] Without approving all of the factors included in the standard adopted by that court, it is sufficient to note that many other lower courts have also considered the gravity of the offense an important part of their constitutional analysis.

For example, courts have permitted warrantless home arrests for major felonies if identifiable exigencies, independent of the gravity of the offense, existed at the time of the arrest. [Citations.] But of those courts addressing the issue, most have refused to permit warrantless home arrests for nonfelonious crimes. [Citations.] The approach taken in these cases should not be surprising. Indeed, without necessarily approving any of these particular holdings or considering every possible factual situation, we note that 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.

We therefore conclude that the common-sense approach utilized by most lower courts is required by the Fourth Amendment prohibition on unreasonable searches and seizures, and hold that an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Moreover, although no exigency is created simply because there is probable cause to believe that a serious crime has been committed, [citation], application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense, such as the kind at issue in this case, has been committed. (Welsh, supra, 466 U.S. at pp. 750-752, fns. omitted.)

The Supreme Court concluded that because of the minor nature of the offense, exigent circumstances did not exist, and the arrest was unlawful. (Welsh, supra, 466 U.S. at pp. 753-754.)

In Olson, supra, 495 U.S. 91, the Supreme Court upheld the Minnesota Supreme Courts conclusion that the warrantless entry into a private residence violated the Fourth Amendment. The suspect was believed to be the getaway driver involved in a robbery/murder. The Minnesota Supreme Court concluded, and the United States Supreme Court agreed, that exigent circumstances did not exist because the suspect was not believed to be the murderer, the murder weapon had been recovered, there was no reason to believe the other occupants in the dwelling were in danger, and if the suspect attempted to flee the dwelling, he would be arrested because the dwelling was surrounded by officers. (Olson, at pp. 100-101.)

U.S. v. Patino (7th Cir. 1987) 830 F.2d 1413 (Patino)also is instructive. Officers had probable cause to believe that Patino and William F. Richard were involved in a series of armed robberies, one of which involved a shooting. Officers verified that Richard occasionally would stay with Patino at Patinos residence. Without obtaining an arrest warrant or a search warrant, the officers drove to Patinos residence to arrest Richard. Concluding Richard was not present because his distinctive truck was not present, the officers went to lunch.

Approximately one hour later, one officer drove by Patinos residence and observed Richard in front of the building. He immediately called for backup, believing that Richard might be armed. The three officers who had gone to the apartment originally responded immediately and arrived at the apartment 30 minutes later. Approximately 40 minutes after first observing Richard, the officers forced entry into Patinos residence, arrested Richard, and detained Patino. While at the residence, Patino gave a statement to the officers admitting her involvement in the robberies.

Patino moved to suppress the statement (and a second statement made six days later) on the grounds that the warrantless entry into her apartment violated the Fourth Amendment. The appellate court agreed.

The governments claim of exigent circumstances here was premised on the fact that there was a clear showing of probable cause, viz., prior to the day of the search, the agents had learned from a reliable informant that Richard had robbed a number of insured financial institutions, a manager of one institution had positively identified him as the perpetrator, he was suspected of committing violent crimes, and he was thought to be planning one more armed robbery before fleeing the Chicago area. No doubt these circumstances required quick and decisive action by the FBI agents; yet the resiliency of the Fourth Amendments warrant requirement is precisely because it is compatible with effective law enforcement. [Citation.] We do not quarrel with the district judges conclusion that immediate action was required, but for purposes of ascertaining the existence of exigent circumstances there is more to this story than just the assembly of the four agents at Patinos apartment-house at 1:40 p.m. As we have previously held: [W]hen the emergency justification is advanced, we believe it is appropriate to appraise the agents conduct during the entire period after they had a right to obtain a warrant and not merely from the moment when they knocked at the front door. [Citation.] [] One fact alone demonstrates the lack of exigent circumstances and the consequent unreasonableness of the entry of Patinos residence without a search warrant. An agent returning alone after the lunch observed Richard outside Patinos apartment-house at about 1:00 p.m., and he called for backup assistance to make the arrest because he thought that Richard might be armed. The magistrate found that these agents were at the time thirty minutes away. The agent at the scene waited for reinforcements before making any attempt to enter Patinos home in search of Richard. Inexplicably, during that thirty-minute period he did not attempt to arrange for a telephonic search warrant despite the provision for such warrants in Federal Rule of Criminal Procedure 41(c)(2). Five years earlier the Supreme Court recognized in Steagald [v. United States (1981) 451 U.S. 204] that the availability of telephonic search warrants minimized the burdens of Steagalds requirement of a search warrant to enter a third persons house to seize a fugitive. [Citation.] A telephonic search warrant should have been sought during the thirty-minute period the agent awaited the other officers. (Patino, supra, 830 F.2d at pp. 1415-1416.)

Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163 (Conway) is similar to the case before us. Nicholas and Virginia Conway owned a dog that escaped from the backyard. A humane officer spied the dog running in the streets. The dog ran home when chased, entered the backyard through an open gate, and entered the house through an unlocked door it managed to open. Not satisfied, the officers followed the dog into the house and impounded it. The Conways were charged with a misdemeanor violation of the citys leash law, placed on two years probation, and fined $500.

The Conways sued the humane society alleging the entry was unlawful, thereby violating their civil rights. The trial court granted the defendants motion for summary judgment, concluding the Conways Fourth Amendment rights were not violated. The appellate court reversed the judgment, concluding that there were not exigent circumstances justifying the warrantless entry because the dog was secured inside the house, was not misbehaving, and the offense committed by the Conways was minor. (Conway, supra, 45 Cal.App.4th at p. 175.)

Escudero, supra, 23 Cal.3d 800 approved the use of the hot pursuit exception to the Fourth Amendment. A friend of the victim arrived at the victims house late one night to discover someone burglarizing the home. The friend chased the burglar when he fled, first on foot and then by vehicle. The burglar abandoned the vehicle and ran away. The friend chased the burglar on foot, but eventually lost sight of the burglar. The victims friend returned to the burglars vehicle, removed the vehicle registration, drove home, and reported the crime to the police.

The vehicle was determined to be registered to Escudero, who lived in the foremans house at the ranch where he worked. The ranch owner verified that Escudero recently had arrived home driving a vehicle matching the one described by the victims friend. Officers went to the house, verified Escudero was present, entered without a warrant and arrested Escudero. The arrest occurred one hour after Escudero was last seen by the victims friend, but within minutes of the officers arriving at the house. The Supreme Court concluded that the hot pursuit exception to the Fourth Amendment excused the need for a warrant before entering the house. (Escudero, supra, 23 Cal.3d at p. 810.) While the total length of the pursuit was longer than the 40 minutes at issue here, Escudero is distinguishable because the officers did not wait any appreciable time to enter the residence once they identified Escudero as the suspect and confirmed his location.

Similarly inapposite is People v. Gilbert (1965) 63 Cal.2d 690.^[2] In Gilbert, two suspects robbed a bank and a third drove the getaway vehicle. One suspect was shot and killed during the getaway. Before he died, the robber identified Gilbert as one of the robbers and told police where he lived. Officers proceeded to the address and spoke with the apartment manager who told them that one of the two men who had rented the apartment the previous day had just left. The officers, believing that one of the two suspects might still be in the apartment, entered without a warrant. The Supreme Court denied Gilberts motion to suppress the incriminating evidence observed by the officers when they entered the apartment, concluding the officers were in hot pursuit of a suspect. (Id. at pp. 706-707.) Again, the officers did not delay in entering the residence once they identified the possible location of the suspect.

Johnson, supra, 256 F.3d 895 is relied on by plaintiffs. In Johnson, a deputy sheriff, after learning Steven Dustin Smith was wanted on five misdemeanor warrants, drove to Smiths house. After a brief struggle, Smith, who was standing outside, ran down the highway. The deputy entered his vehicle and pursued Smith. Smith ran into the woods that bordered the highway, causing the deputy to lose sight of him. (Id. at pp. 898-899.)

Approximately 150 feet down the highway was a driveway leading to the residence of Smiths parents. Approximately 1,200 feet down the highway was a driveway leading to Johnsons residence. Deputies were sent to Smiths mothers house and to the driveway leading to Johnsons house. After traveling some distance on the driveway to Johnsons house, the officers encountered a locked gate. Some 30 minutes after Smith vanished into the woods, the officers were able to manipulate the locking mechanism and open the gate without the benefit of a key to the lock. (Johnson, supra, 256 F.3d at pp. 899-900.) The officers continued down the driveway until they encountered Johnsons residence and several other structures. They knocked on the door to the residence but did not receive a response. They then began searching the area around the residence for Smith. When they approached one of the sheds, the officers smelled the odor of marijuana. They left the residential area, obtained a search warrant, and recovered 553 marijuana plants in the subsequent search. The search warrant was based solely on the officers observations while searching for Smith. (Id. at p. 900.)

The appellate court held that the police did not have probable cause to enter Johnsons residence because there were no objective facts to suggest that Smith had entered the property. Smith, who had not been seen for 30 minutes, could have gone in any direction after leaving the roadway, and the officers did not have any idea in which direction he actually ran. (Johnson, supra, 256 F.3d at p. 906.)

The prosecution argued the entry onto Johnsons property was permissible because the officers were in hot pursuit of Smith. The hot pursuit exception to the warrant requirement only applies when officers are in immediate and continuous pursuit of a suspect from the scene of the crime. [Citations.] In addition, the critical time for determining whether any exigency exists is the moment the officer makes the warrantless entry. They cannot rely on exigencies discovered once they are inside. [Citation.](Johnson, supra, 256 F.3d at p. 907.) The appellate court concluded the pursuit of Smith was not continuous.

After [the deputy] lost sight of Smith in the woods, he waited for a half hour for backup to arrive. During this time, he returned to Smiths residence and retrieved a pepper spray canister that he had lost during his confrontation with Smith. When the officers entered Johnsons property, no one had seen Smith for over a half hour. Unless the continuity requirement is stretched beyond recognition, the facts of this case simply are not covered by the hot pursuit doctrine. The half-hour time period, during which the officers received no new information about where Smith had gone, turned the pursuit from lukewarm to ice cold.

While we respect [the deputys] concern for his safety had he followed Smith into the woods, it does not change the fact that [Smith] had not been seen or heard for at least 30 minutes after disappearing into the woods. This is not a case where the police officers always knew exactly where the suspect was, but decided that it would be dangerous for them to enter the property until reinforcements arrive. [Citation.] Under such circumstances, the continuity of the chase is delayed, but not broken. [Citation.]

In this case, however, the continuity of the chase was terminated permanently. Smith did not run into a confined area where [the deputy] could monitor his movements while waiting for his backup to arrive. Smith ran into a wooded area where he was free to run for over a half hour. Once the alleged pursuit resumed, the officers no longer had any idea where Smith was.

Under these circumstances, the continuity of the chase was clearly broken and a warrant was required. Although this requirement may be inconvenient to law enforcement, any other outcome renders the concept of hot pursuit meaningless and allows the police to conduct warrantless searches while investigating a suspects whereabouts.

We also find instructive the Supreme Courts holding in Welsh v. Wisconsin (1984) 466 U.S. 740, 750, that an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. [Citation.] Although the Court did not draw a bright line between felonies and misdemeanors, it cited favorably a number of cases that refused to permit warrantless entries of the home for nonfelonious crimes. [Citation.] Based on these cases, the Court found that application of the exigent circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense  has been committed. [Citation.]

Smith was only wanted for misdemeanor offenses. Even his unlawful conduct that gave rise to the initial chase, i.e., resisting arrest, is a misdemeanor under Washington law. [Citation.] Although this does not definitely preclude a finding of exigent circumstances, it weighs heavily against it. (Johnson, supra, 256 F.3d at pp. 907-908.)

The facts surrounding entry into Browns apartment are not comparable to the facts addressed by the appellate court in Johnson. The situation here is, to some extent, similar to the example cited in Johnson. The officers stopped immediate pursuit of the suspect to permit additional officers to arrive and ensure officer safety. The officers also had observed the suspect enter the apartment and believed they had the suspect trapped inside. At this point, however, any assistance Johnson provides to plaintiffs ends.

We think that this case is not readily comparable to any of the cases cited above that found exigent circumstances existed, nor to any of the other cases cited by the parties, nor to any of the cases we reviewed while researching the issue. Each of the cited cases, however, provides some assistance in resolving this matter.

Welch teaches that when the suspect is wanted for a misdemeanor, the courts must examine closely the claim of exigent circumstances because the Fourth Amendments warrant requirement cannot be ignored unless an emergency truly exists, and an arrest for a misdemeanor seldom will constitute an emergency.

Olson teaches that a warrantless entry is not appropriate, even when the suspect is wanted for committing a felony, when there is no chance for his or her escape. In such a situation, the emergency no longer exists because the suspect cannot leave while the officers obtain a warrant.

Patino criticized the officers and found a Fourth Amendment violation because the officer did not attempt to obtain a warrant during the 30 minutes he was waiting for backup to arrive.

Finally, we have Conway, which presents facts that are most similar to our case. As in Conway, the officers sought a warrantless entry arising from a minor offense. They decided to enter, even after it was clear there was ample time to obtain a warrant. The canine in Conway could not escape, as it had been confined to one bedroom in the house. Similarly, the suspect in this case could not escape because the apartment was surrounded.

The difference, of course, is that here the man could escape through the attic crawl space. The officers conduct, however, establishes this fact did not create an exigent circumstance. While no one could criticize the decision by Barnes and Ruiz to wait for backup before entering the apartment, the officers can be criticized for waiting for an extended period of time after backup arrived to enter the apartment. Officers Aranas and Bishop arrived seven minutes after the first call for backup, and Ramos arrived 24 minutes after the first call. Another 16 to 17 minutes passed before the officers finally entered the apartment. Although the actual time of arrival is not documented, numerous additional officers arrived at the scene before the entry into the apartment. If the officers were concerned that the man was escaping through the attic, they would not have allowed so much time to have passed after backup arrived.

In analyzing Fourth Amendment issues, we are required to utilize a commonsense approach, considering all of the facts known to the officers at the time of the warrantless entry. Common sense can lead to only one conclusion: There were no exigent circumstances when the officers entered Browns apartment. The man was wanted for only a misdemeanor, some might even say a trivial, offense. It was clear the man could not escape the apartment without being observed, except through the attic. If the man did not escape through the front door before Ruiz drove his vehicle to the front of the complex, every minute the officers delayed entering the apartment gave the man additional time to escape through the attic, a fact of which the officers were aware. Nonetheless, the officers waited over 30 minutes after backup arrived before entering the apartment. Thus, this route of escape did not give rise to an exigent circumstance. The lengthy delay in entering the apartment, when combined with the minor nature of the offense, simply permitted any exigency that may have existed to expire.

We conclude, therefore, that as a matter of law the warrantless entry into Browns apartment violated the Fourth Amendments protection against warrantless searches or seizures.

The officers testimonies suggest they did not want to obtain a warrant because to do so would have been time consuming, and because the lateness of the hour would have required awakening a judge to approve the warrant. While it certainly would not have been convenient for either the officers or the judge to obtain a warrant, the Fourth Amendment cannot be ignored simply because it is inconvenient. The Fourth Amendment demands that a warrant be obtained unless an emergency permits the officers to proceed without a warrant. As we have explained, at the time of entry into the apartment, no emergency existed.

We also want to be clear about what we are not deciding. As stated above, we are not criticizing the decision to await backup before entering the apartment. Nor are we criticizing the officers for opening a dialog with Brooks and Brown in an attempt to gain permission to enter the apartment. Nor are we suggesting that exigent circumstances will expire any time an officer attempts to convince a property owner to permit entry before making a warrantless entry into the apartment.

We do not conclude the jury verdict was wrong, only that the jury was incorrectly instructed and the plaintiffs are entitled to a verdict on the remaining causes of action after the jury has been properly instructed. Nor are we imposing liability on the City of Fresno. There are many issues left for the jury to decide that may result in another defense verdict. That will be for a properly instructed jury to decide. Finally, we are not suggesting the officers in this case acted with bad faith or malice.

While we agree with the dissent that it is the province of the jury to decide factual disputes, it is indisputable that for every triable issue there will be a specific set of facts that permit only a single result when the relevant legal principles are applied. For example, if the police had permitted the standoff at Browns apartment to last for three days before forcing entry, we are confident the dissent would agree that the hot pursuit doctrine would not apply. While our example is, of course, ridiculous, the point it demonstrates is critical: at some point in time the exigency will expire. Our conclusion draws the line in this case somewhere before 41 minutes. The dissent apparently would draw the line somewhere after 41 minutes.

Therefore, while acknowledging that the jury must decide disputed factual issues, the trial court must decide questions of law, including whether the facts of a case will permit instructing the jury on various theories. When the evidence is insufficient to support a theory, the trial court must reject the requested instruction. This is a principle the appellate bench applies routinely and often. In deciding here that the exigent circumstance instruction was not supported by the evidence, we do not, as the dissent suggests, interfere with the prerogative of the jury. Instead, we perform our duty to insist that the jury instructions be tailored to the evidence.

We emphasize that our holding is limited to the specific facts of this case: (1) a minor offense, (2) no possibility of the suspect escaping without being detected, and (3) a delay in excess of 30 minutes after backup officers arrived at the scene. A change in any factor may well have compelled a different result.

II. Prejudice

Our conclusion that there were no exigent circumstances compels the conclusion that the trial court erred in instructing the jury that if exigent circumstances existed, the officers did not need a warrant before entering Browns apartment. The only issue remaining, therefore, is whether this conclusion requires a complete or partial reversal of the judgment.

Code of Civil Procedure section 475 provides that we may not reverse a judgment for an error in instructing the jury unless the error affected the substantial rights of the party resulting in prejudice and substantial injury. We must determine whether a different result would have been probable in the absence of the erroneous instruction.

Plaintiffs argue, without citation to authority or significant analysis, that the entire judgment must be reversed because it is highly probable that, without an exigent circumstance exception for the Fourth Amendments warrant requirement, the jury would have found in favor of plaintiffs. Our decision, however, must be made using a reasoned analysis, not assumptions.

Clearly, reversal of the plaintiffs cause of action for violation of their civil rights based on the warrantless entry into the home must be reversed. The jury found that exigent circumstances justified the officers warrantless entry into Browns apartment. Our conclusion that no exigent circumstances existed means that it is probable that a different result would have been reached had the instruction not been given.

Resolution of the remaining causes of action is not so easy. We begin with Brookss cause of action for battery by a police officer. To prevail, Brooks was required to prove (1) the officers intentionally touched him; (2) the officers used unreasonable force to overcome his resistance; (3) he did not consent to the use of force; (4) he was harmed; and (5) the use of unreasonable force was a substantial factor in causing his injuries. (Judicial Council of Cal. Civ. Jury Instns. (2008) CACI No. 1305.) The jury concluded that the officers did not use unreasonable force in overcoming Brookss resistance. The issue, therefore, is whether the unlawful entry into the apartment could affect the jurys verdict.

The answer to this question is no. Penal Code section 834a states, If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest. We held in Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 331, execution of an unlawful arrest or detention does not give license to an individual to strike or assault the officer unless excessive force is used or threatened; excessive force in that event triggers the individuals right of self-defense. [Citation.]

People v. Wilkins (1993) 14 Cal.App.4th 761, cited by plaintiffs in support of their argument, is inapposite. Plaintiffs cite to a portion of Wilkins that addresses the proper instructions for violation of Penal Code sections 148 (resisting or obstructing an officer) and 69 (resisting arrest). We are not concerned with the elements of a Penal Code section 148 or 69 offense, or with the elements of such a violation.

The question is whether the unlawful entry by the officers permitted the use of force in resisting detention or arrest. Evans establishes that it does not. Since Brooks was not justified in resisting arrest, and the jury found that the officers did not use unreasonable force in detaining/arresting Brooks, the error in instructing the jury about exigent circumstances does not affect the defense verdict. Accordingly, we affirm the judgment in favor of the City of Fresnoon the battery cause of action. This conclusion also requires that we affirm the defense verdict for the cause of action that alleged Brookss civil rights were violated by the use of excessive force. The jury determined that excessive force was not used, and the erroneous instruction does not affect this result.

We are left with the tort causes of actions alleged by plaintiffs: (1) negligence, (2) negligent infliction of emotional distress, and (3) intentional infliction of emotional distress. The jury concluded the officers were not negligent, nor was their conduct outrageous. The issue, as we see it, is whether it is probable the plaintiffs would have prevailed had the jury been instructed that the warrantless entry into Browns apartment was unlawful.

We conclude the judgment on the two negligence causes of actions must be reversed. If the jury had been informed that the officers entry into Browns apartment was unlawful, it is probable that the jury would have decided the officers conduct in entering the apartment without a warrant was negligent, thus giving rise to damages proximately caused thereby and exposing the City of Fresnoto damages for negligent infliction of emotional distress.

A closer question is raised by the intentional infliction of emotional distress cause of action. To prevail on this cause of action, plaintiffs were required to prove (1) the officers conduct was outrageous; (2) the officers intended to cause emotional distress or acted with reckless disregard of the probability that the plaintiffs would suffer emotional distress, knowing that plaintiffs were present when the conduct occurred; (3) the plaintiffs suffered severe emotional distress; and (4) the officers conduct was a substantial factor in causing the plaintiffs emotional distress.

The jury concluded that the officers conduct was not outrageous. While we cannot say that if the jury had addressed the other elements of the cause of action it would have found in favor of plaintiffs, we think that had the jury been instructed that the officers entry into Browns apartment was unlawful, it is probable that the jury would have reached a different result when deciding whether the officers conduct was outrageous. The erroneous instruction probably adversely affected the jurys decision.

CONCLUSION

We clarify the parameters of our decision to avoid any confusion on remand. We are reversing the judgment for (1) violation of plaintiffs civil rights as a result of the unlawful entry into the apartment, (2) negligence arising from the unlawful entry into the apartment, (3) any negligent infliction of emotional distress arising from the unlawful entry into the apartment, and (4) any intentional infliction of emotional distress related to the unlawful entry into the apartment. Thus, we are remanding the matter for retrial on those causes of action. We are not suggesting that plaintiffs will prevail on any of the causes of action. Instead, we merely conclude plaintiffs must be permitted to retry them with a properly instructed jury.

We are affirming the judgment in favor of the City of Fresnoon the causes of action for police officer battery and civil rights violations based on the theory that the officers used excessive force in detaining Brooks. No instructional issue related to those causes of action has been raised, and the error in instructing the jury on exigent circumstances did not adversely affect its decision.

As a result of our decision, the only damages to which plaintiffs are entitled to pursue on remand are those related to the unlawful entry into the apartment by the officers. The plaintiffs may not argue that injuries resulting from the scuffle between Brooks and the officers who were trying to detain/arrest him form a basis for damages. The jury determined that the actions of Brooks required the officers to apply force to detain/arrest him. Since we affirm that portion of the judgment, no damages may be awarded any plaintiff for the officers actions in restraining Brooks.