Hopkins v. City of Sierra Vista, Ariz.

• Decision Date: 02 May 1991
• Docket Number: 89-16542,Nos. 89-15944,s. 89-15944
• Citation: 931 F.2d 524
• Parties: Barry M. HOPKINS, Husband and Katie M. Hopkins, Wife, Plaintiffs-Appellants, v. CITY OF SIERRA VISTA, ARIZONA, a Body Politic, and Steven Gerhardt, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 524

931 F.2d 524

Barry M. HOPKINS, Husband and Katie M. Hopkins, Wife, Plaintiffs-Appellants, v. CITY OF SIERRA VISTA, ARIZONA, a Body Politic, and Steven

Gerhardt, Defendants-Appellees.

Nos. 89-15944, 89-16542.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 12, 1990.

Memorandum March 6, 1991.

Order and Opinion May 2, 1991.

Tony K. Behrens, Sierra Vista, Ariz. for plaintiffs-appellants.

Gerald F. Till, Fauver & Till, Sierra Vista, Ariz., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before HUG, BEEZER and BRUNETTI, Circuit Judges.

ORDER

The memorandum disposition filed March 6, 1991, is redesignated as an authored opinion by Judge Beezer.

BEEZER, Circuit Judge:

Barry and Katie Hopkins appeal the grant of summary judgment and the award of attorneys' fees in favor of the defendants in a civil rights action brought pursuant to 42 U.S.C. Sec. 1983. We reverse and remand for trial on the question of liability and reverse the award of attorneys' fees.

I

Shortly after midnight on April 2, 1988, Plaintiff Barry Hopkins returned to his home at apartment 728 of the Sinaloa Apartments. ¹ He played dominoes with his brother-in-law and then played cards with other friends and acquaintances who came to the apartment after he arrived home. While playing, Hopkins and his friends drank beer and whiskey.

Later that morning, the police department for the City of Sierra Vista received an anonymous telephone call reporting that a woman in apartment 728 of the Sinaloa Apartments was "getting the shit beat out of her" and that the violence had "been going on for hours." Officer Steven Gerhardt responded to the call, arriving at the Sinaloa Apartments at approximately 4:04 a.m.

When Gerhardt arrived at the Sinaloa Apartments, he may have heard sounds evidencing a card game, possibly including an argument, coming from apartment 728. ² The noise may have been "a little too loud for that time of night." He may also have heard the sound of chairs being moved underneath a table. ³ He did not hear anything that sounded like a woman screaming for help.

After hearing someone knock on the door, ⁴ Hopkins opened the door wide enough to put his hand through and stated to Gerhardt that he knew he and his company had been loud, but that everything was over and everyone was going home. ⁵ Gerhardt informed Hopkins that he had a report of an assault and was checking on the welfare of the occupants. Gerhardt tried to persuade Hopkins to allow him into the house to check on the welfare of the occupants, but Hopkins refused. Hopkins also refused to allow Gerhardt to speak to Hopkins' wife, explaining that she was asleep and he did not want to wake her. Gerhardt smelled alcohol on Hopkins' breath and noticed that Hopkins acted in a way Gerhardt associated with alcohol consumption. Gerhardt had responded to over 1000 complaints of domestic violence and it was his experience that alcohol is often involved in domestic disturbances. He also knew, through personal experience and conversations with other officers, that Hopkins had been involved in other domestic violence situations. ⁶

Gerhardt then placed his hand against Hopkins' chest and forced his way into the apartment. He was in the apartment for ten to twelve minutes and left after speaking to Hopkins' wife. ⁷

The Hopkinses brought suit seeking damages and injunctive relief against Gerhardt and the City of Sierra Vista. Both parties filed motions for summary judgment, although the Hopkinses withdrew their motion with respect to the City. On June 14, 1989, the district court granted summary judgment in favor of the defendants. The Hopkinses appealed.

On June 22, 1989, defendants filed a motion for attorneys' fees, pursuant to 42 U.S.C. Sec. 1988 and Fed.R.Civ.P. 11. On August 21, 1989, the district court granted defendants' motion. On October 11, 1989, the district court amended its order granting fees to clarify that it did not intend fees to be granted pursuant to Rule 11, or to be assessed against counsel for plaintiff. Plaintiffs moved for reconsideration. On November 17, 1989, the district court denied reconsideration and awarded fees in the amount of $6,054.50. The award and the amount are both appealed. Both parties seek attorneys' fees on appeal pursuant to 42 U.S.C. Sec. 1988.

II

We review a grant of summary judgment de novo, examining all facts and inferences drawn from them in the light most favorable to the non-moving party, to determine whether there are any genuine issues of material fact. Wood v. Ostrander, 879 F.2d 583, 586-87 (9th Cir.1989) (citations omitted), cert. denied, --- U.S. ----, 111 S.Ct. 341, 112 L.Ed.2d 305 (1990). However, "[i]n a Sec. 1983 action, the factual matters underlying the judgment of reasonableness generally mean that probable cause is a question for the jury." McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir.1984) (citation omitted). ⁸ "[S]ummary judgment is appropriate only if no reasonable jury could find that the officers did or did not have probable cause to arrest." Id.

In granting summary judgment in favor of the defendants, the district court stated that "there existed probable cause for the entry and search in question." However, the warrantless search of a house requires both probable cause and exigent circumstances. United States v. Suarez, 902 F.2d 1466, 1467-68 (9th Cir.1990); see also United States v. Howard, 828 F.2d 552, 555 (9th Cir.1987). We must determine, therefore, whether the facts, viewed in the light most favorable to the Hopkinses, establish as a matter of law that there were both probable cause and exigent circumstances to justify Gerhardt's warrantless search.

Exigent circumstances are those "that would cause a reasonable person to believe that entry ... was necessary to prevent physical harm to the officers or other persons." United States v. Lindsey, 877 F.2d 777, 780 (9th Cir.1989) (quotation omitted). "The exigencies must be viewed from the totality of the circumstances known to the officers at the time of the warrantless intrusion." Id. (quotation omitted). Where there is probable cause to believe someone is being beaten, there clearly are exigent circumstances justifying immediate entry.

Probable cause requires "a reasonable belief, evaluated in light of the officer's experience and the practical considerations of everyday life," that a crime has been, is being, or is about to be committed. United States v. George, 883 F.2d 1407, 1412 (9th Cir.1989).

Officer Gerhardt's visit to the Hopkinses' apartment was precipitated by an anonymous phone call. However, probable cause depends both on the quantity and quality of the information possessed by the police. See Alabama v. White, --- U.S. ----, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). "Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." Id.

In determining the role of an anonymous tip in establishing probable cause, the Supreme Court, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), determined that a magistrate or court "must consider an informant's 'veracity,' 'reliability' and 'basis of knowledge' under the totality of the circumstances." United States v. Roberts, 747 F.2d 537, 543 (9th Cir.1984). Although these things are difficult to test in the case of an anonymous informant, corroboration of details of the tip that could be known only to someone close to the situation may suggest that the tip is reliable. See Gates, 462 U.S. at 244-45, 103 S.Ct. at 2335.

More recently, the Court explained that in finding reasonable suspicion ⁹ where there was an anonymous tip alleging criminal conduct but police observations showed no suspicious behavior, "[w]hat was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information--a special familiarity with respondent's affairs." White, 110 S.Ct. at 2417 (emphasis in original). Details such as the fact that the defendant entered a car matching the description given were not significant because "[a]nyone could have 'predicted' that fact because it was a condition presumably existing at the time of the call." Id.

We have accepted anonymous tips as a basis for probable cause where significant details of the tip were corroborated. See, e.g., United States v. Rodriguez, 869 F.2d 479 (9th Cir.1989); United States v. Fixen, 780 F.2d 1434 (9th Cir.1986). However, in the present case there are no details to corroborate; the tip consisted only of a bald assertion that the crime was occurring at a certain place.

A tip similar to this one was given to the police in United States v. Kerr, 876 F.2d 1440 (9th Cir.1989), in which an anonymous informant told police only that the defendant was growing and distributing marijuana. Although the tip itself contained no detail that could be corroborated to show the reliability of the informant, we agreed that probable cause had been established. This conclusion was based in part on the fact that, subsequent to receiving the tip, police investigation "revealed several additional facts which, although relatively innocuous on their face, tend[ed] to corroborate the informant's story," including the fact that the investigating officer smelled the odor of marijuana at the defendant's home. ¹⁰ Id. at 1444.

Similarly, in White by White v. Pierce County, 797 F.2d 812 (9th Cir.1986), we upheld a warrantless entry by police officers dispatched to the plaintiff's residence because of a report that a seven-year-old child with severe welts on his back was seen playing in the yard. While the officers were speaking with the plaintiff, they saw a boy who appeared to be about seven years old trying to show them his back. When the plaintiff told the boy to go to another room and refused to let...