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Police need not obtain an arrest warrant before taking a suspect into custody after a 12-hour armed standoff, even though exigent circumstances may have dissipated, the en banc 9th Circuit has ruled.

The defendant was in his home when he pointed a gun at a security guard investigating loud music in another apartment. When police arrived, he was visibly drunk, belligerent and threatened to shoot police if he came on or near his property.

After a 12-hour standoff during which the defendant retreated into his apartment for several hours, the police arrested him.

He sued under §1983, claiming that the police should have obtained a warrant because the exigency had dissipated by the time they arrested him.

A U.S. District Court and the 9th Circuit agreed.

But the en banc panel reversed.

“This armed standoff was a single Fourth Amendment event. … [The defendant] threatened the officers shortly after they arrived, and retained full control of his eighteen guns and ammunition until the end. The entire standoff was an uninterrupted, fluid engagement between [him] and the police. … In sum, no event of Fourth Amendment significance occurred that would re-trigger the warrant requirement and compel the police to inquire as to whether exigent circumstances still existed. …

“[S]uggesting that a magistrate should be telling police in the middle of the standoff that they must withdraw or what tactics are permissible does not strike us as a reasonable role for a judicial officer under the Fourth Amendment,” the court said.

U.S. Court of Appeals, 9th Circuit. Fisher v. San Jose, No. 04-16095. March 11, 2009. Lawyers USA No. 993-554. Click here for the full text of this opinion.

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