Keith WALKER, Plaintiff-Appellee, v. KING COUNTY, Defendant, and Officer Marylisa Priebe-Olson and Officer Paul Aio, Defendants-Appellants, 376 F. App'x 704

MEMORANDUM On appeal, Officer Marylisa Priebe-Ol-son and Officer Paul Aio (together “Defendants”) argue that the district court erred in denying their motion for

summary judgment granting them qualified immunity. We disagree and affirm the district court. Because the parties are familiar with the factual history of this case, we will not recount it here. 1. The district court correctly determined that Defendants were not entitled to qualified immunity for their entry into the Walker home.

In order to determine whether Defendants are entitled to qualified immunity, we consider whether, after viewing the facts in the light most favorable to the party asserting injury, (1) the facts show the officers’ conduct violated a constitutional right, and (2) whether that constitutional right in question was clearly established at the time of defendants’ misconduct. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled on other grounds by Pearson v.

Callahan, — U.S. -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (holding Saucier protocol, while no longer mandatory in all cases, is “often beneficial”). Under the first Saucier prong, Defendants argue that their warrantless entry was lawful as a “welfare check,” relying on a Washington state case, State v. Gocken, 71 Wash.App. 267, 857 P.2d 1074, 1080 (1993). However, the Gocken holding does not cover Defendants in this case.

The Gocken exception does not apply if: (1) the officers’ motive in making their warrant-less entry was to either make an arrest or search for evidence of a crime; or (2) there was probable cause to suspect a crime is being or has been committed. Gocken, 857 P.2d at 1080 & n. 6. Viewing the evidence in the light most favorable to Walker, the Gocken rule does not apply here because:

(1) Defendants’ motive in going to Walker’s home was to investigate the child abuse investigations and whether Walker was a felon-in-possession of a firearm; and

(2) Defendants had probable cause that a crime had been committed when they entered Walker’s home. Defendants went to Walker’s home only after receiving abuse allegations from D.W.’s mother. Additionally, Officer Priebe-Olson had investigated Walker’s criminal history and “the felon-in-possession issue is part of what she wanted to investigate at the Walker house.” The record also shows that Defendants had been alerted to the possibility of a gun at the house by D.W.’s mother.

Under the second Saucier prong, Defendants would be granted immunity if the constitutional right they violated was not clearly established at the time of their actions. Again, even assuming Gocken created enough ambiguity to show that the law was not clearly established, the Gocken rule did not cover Defendants’ actions here for the reasons noted above. 2. The district court correctly determined that Defendants were not entitled to qualified immunity for arresting Walker.

Because Defendants’ entry into Walker’s home was unlawful under the Fourth Amendment, Defendants’ subsequent arrest of Walker was also unlawful. See Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). 3. The district court correctly determined that Defendants were not entitled to qualified immunity for their warrantless search of Walker’s home and their seizure of Walker’s gun. Defendants conducted a warrantless search of Walker’s home based on information they obtained during an unlawful entry and unlawful questioning.

Consequently, their search of the house was entirely a product of their unlawful entry and arrest. Cf. Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (holding that evidence obtained as a result of an illegal search is inadmissable as “fruit of the poisonous tree”). Moreover, even if exigent circumstances justifying a war-rantless search existed after Defendants entered the home, Defendants learned of such circumstances only as a result of this unlawful entry, questioning, and arrest. Exigent circumstances, therefore, cannot render the search lawful. AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.