In Jones v. City of N. Las Vegas,[1] the Ninth Circuit Court of Appeals affirmed in part and reversed in part a District Court’s summary judgment in favor of defendant police officers in plaintiffs’ action alleging that defendants violated their Fourth Amendment rights when the officers physically intruded into plaintiffs’ backyard without permission while searching for a suspect, and one of the officers shot and killed two of plaintiffs’ dogs after the dogs attacked the police K-9. The Court held that there was no hot pursuit where the officers lost track of the suspect for eighteen minutes, yet nonetheless also held that the K-9 handler was entitled to qualified immunity with respect to his use of force against plaintiffs’ dogs.
Background
In February 2019, North Las Vegas Police Department (“NLVPD”) Officers Joseph Minelli (“Officer Minelli”) and Michael Rose (“Officer Rose”) responded to a possible domestic battery at a house in a residential area. While Officer Minelli spoke with a woman at the door, Officer Rose moved to the side of the house, where he witnessed a person flee over the back wall into a neighboring backyard. Instead of directly following the suspect, Officer Rose hurried to his car, called for backup, and drove two blocks south. Meanwhile, Officer Minelli stayed at the home to investigate the domestic battery allegation and observed injuries on the woman’s face. Officers suspected that the woman’s boyfriend had battered her and believed the boyfriend to be the person who Officer Rose saw flee. Officer Minelli remained at the address in case the suspect returned.
Several units quickly responded to Officer Rose’s call for backup and helped Officer Rose establish a multiple-block perimeter around the area. A sergeant on scene called for a K-9 unit to search for the suspect. NLVPD Lieutenant Scott Salkoff and his police K-9 Storm responded to the scene around 4:05 p.m., approximately eighteen minutes after Officer Rose saw the suspect flee over the back wall. Storm was trained to detect the odor of apocrine, a hormone some people release when they are afraid.
Lieutenant Salkoff used Storm to search within the perimeter. Lieutenant Salkoff informed residents of the searches using his patrol car’s public address system. He also sent NLVPD Officer Lee Young ahead to seek consent from residents to search their yards. Lieutenant Salkoff was searching a backyard four houses east and one house south of where the suspect vanished when Storm alerted to an odor coming from a distant, elevated position in the direction of Genoa Jones and Cornell Tinsley’s (“Plaintiffs”) walled-in backyard.[2]
Lieutenant Salkoff decided to search Plaintiffs’ backyard. He had Officer Young check the gate, which was locked and posted with a “Beware of Dog” sign. Officer Young knocked on Plaintiffs’ door to request their consent to search the yard but received no response because they were not home. To gain a vantage, Lieutenant Salkoff jumped onto the six-foot cinderblock wall that enclosed Plaintiffs’ yard. He observed trash cans, where he thought the suspect might be hiding, and a fenced-in kennel area with an open gate and three dog houses and bowls but did not see any dogs.
With neither a warrant nor Plaintiffs’ consent, Lieutenant Salkoff hopped down from the wall into their backyard. Officer Rose then passed Storm over the wall. Plaintiffs’ three dogs emerged from their doghouses. Lieutenant Salkoff attempted to keep the dogs at bay, kicking them and placing trash cans between them and Storm. His efforts deterred one dog, but when the other two attacked Storm, Lieutenant Salkoff drew his service weapon and killed both of the attacking dogs.
Plaintiffs sued Lieutenant Salkoff, Officer Rose, and the City of North Las Vegas (“the City”) under 42 U.S.C. section 1983, claiming the officers and the City of North Las Vegas violated their Fourth Amendment right to be free from unwarranted searches and seizures. The District Court granted summary judgment for the officers, reasoning that the officers’ intrusion was permitted by the hot pursuit exception to the warrant requirement and that the use of force was reasonable under the circumstances. The District Court also granted summary judgment for the City, finding no support for Plaintiffs’ failure-to-train theory. Plaintiffs appealed.
Discussion
The Ninth Circuit Court of Appeals initially explained that qualified immunity protects government officials from liability under Section 1983 “unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.” Waid v. County of Lyon, 87 F.4th 383, 387 (9th Cir. 2023) (quoting District of Columbia v. Wesby, 583 U.S. 48, 62-63 (2018)). Defendants are entitled to qualified immunity where a court finds “a negative answer at either step.” Sabbe v. Wash. Cnty. Bd. of Comm’rs, 84 F.4th 807, 819 (9th Cir. 2023).
The Court explained that “[w]hen a law enforcement officer physically intrudes on the curtilage” of a home, like a walled-in backyard, “a search within the meaning of the Fourth Amendment has occurred.” Collins v. Virginia, 584 U.S. 586, 593 (2018). This curtilage area is subject to Fourth Amendment protection. See United States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010) (quoting United States v. Romero-Bustamente, 337 F.3d 1104, 1108 (9th Cir. 2003)). Such searches are “presumptively unreasonable absent a warrant.” Collins, 584 U.S. at 593. However, the Fourth Amendment’s warrant requirement “is subject to certain exceptions.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). An “exigent circumstance” such as “the hot pursuit of a fleeing suspect” may constitute such an exception. Struckman, 603 F.3d at 743.
The Ninth Circuit explained that to rely on the exigent circumstances exception, the government “must satisfy two requirements: first, the government must prove that the officer had probable cause to search,” and “second, the government must prove that exigent circumstances justified the warrantless intrusion.” United States v. Johnson, 256 F.3d 895, 905 (9th Cir. 2001) (en banc) (per curiam). The Ninth Circuit observed here that Lieutenant Salkoff and Officer Rose physically intruded into Plaintiffs’ walled-in backyard — Lieutenant Salkoff by entering the yard and Officer Rose by passing Storm over the wall. The Court noted that such a warrantless search is presumptively unreasonable. The Court of Appeals stated that the District Court assumed, without explanation, that Lieutenant Salkoff and Officer Rose conducted this warrantless search while in hot pursuit of a fleeing suspect.
The Ninth Circuit explained that “[t]he 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.” Johnson, 256 F.3d at 907 (quoting Welsh v. Wisconsin, 466 U.S. 740, 753 (1984)). Officers act with sufficient speed to qualify as hot pursuit when they act immediately, making a “split-second decision” to pursue a suspect. Stanton v. Sims, 571 U.S. 3, 10 (2013) (per curiam). However, there is no hot pursuit where “the continuity of the chase was terminated permanently.” Johnson, 256 F.3d at 908.
In its recent case Newman v. Underhill, 134 F.4th 1025, 1031 (9th Cir. 2025), the Ninth Circuit observed that whether a pursuit’s continuity has been broken is a function of “two interrelated considerations.” 134 F.4th at 1033. First, “whether, and to what degree, the officer[] lost track of the suspect’s whereabouts.” Id. Second, whether, after losing sight of a suspect, the officer “continued to act with speed in attempting to apprehend the suspect.” Id. Here, the Court explained that timing is relevant to both considerations, stating “[a]s seconds and minutes tick by, the officer’s once-clear knowledge of a suspect’s position fades till they are no longer chasing a suspect but instead searching for him.” “The more time passes without the officer’s physically chasing after the suspect . . . the more likely the continuity of the chase is to break.” Newman, supra, at 1031. Newman held that the pursuit’s continuity in that case was unbroken because the officers “had a reasonably good idea where [the suspect] was hiding” for the duration of the nine minutes after they lost sight of him. Id. at 1033.
Here, the Ninth Circuit observed that Officer Rose last saw the suspect fleeing toward a different property — three houses west of Plaintiffs’ home — rather than directly to the property that was later searched. Officer Rose neither chased after the person nor peered over the wall to monitor the person’s movements, and instead unsuccessfully attempted to cut the suspect off by patrol car. Officers had seen no sign of the suspect for at least eighteen minutes preceding their search, in which time the suspect’s movements through a suburban neighborhood were completely unknown. The Court concluded that the hot pursuit exception to the Fourth Amendment’s warrant requirement did not apply.
Defendants argued that they reasonably believed the suspect was somewhere within the neighborhood, and therefore, the continuity of their search was unbroken. The Ninth Circuit rejected this argument, stating that Johnson, decided in 2001, made it “abundantly clear to officers in 2019 that they may not sweep through an area and search the properties within it simply because they believe a suspect is somewhere therein. 256 F.3d at 907-08.” Because Defendants lacked an exigent circumstance to search Plaintiffs’ yard under clearly established law at the time of the incident, the Ninth Circuit concluded they were not entitled to qualified immunity and summary judgment was improper. The Court also rejected Defendants contention that Storm’s alert salvaged the hot pursuit and gave them probable cause to search Plaintiffs’ yard. The Court explained that even if the dog sniff did give officers probable cause to believe the suspect was in Plaintiffs’ yard, probable cause alone is insufficient to obviate the Fourth Amendment’s warrant requirement — there must be both probable cause and an exigent circumstance. Johnson, 256 F.3d at 905. Accordingly, the Ninth Circuit reversed the District Court’s grant of qualified immunity and summary judgment to Lieutenant Salkoff and Officer Rose with respect to their search of Plaintiffs’ backyard.
The Ninth Circuit next addressed Lieutenant Salkoff’s use of force on the two dogs in Plaintiffs’ backyard. Plaintiffs argued that Lieutenant Salkoff violated the Fourth Amendment when he unreasonably seized their dogs by shooting them dead. The Court explained that “[]reasonableness is the touchstone of any seizure under the Fourth Amendment.” San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005). “To determine whether the shooting of the dogs was reasonable, [courts] balance ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.’” Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
The Court explained that when evaluating an officer’s use of force following a warrantless intrusion into private space, courts must not conflate the unreasonable seizure claim with the unreasonable search claim challenging the entry. County of Los Angeles v. Mendez, 581 U.S. 420, 428 (2017) (“[T]he objective reasonableness analysis must be conducted separately for each search or seizure that is alleged to be unconstitutional.”). Even where officers have violated clearly established law with a warrantless search, a court cannot rely on that warrantless search to say that an officer’s otherwise reasonable subsequent use of force was excessive. See id. at 428-29.
In Hells Angels, the Ninth Circuit had recognized “that dogs are more than just a personal effect,” and found that killing dogs is a “severe” intrusion on Fourth Amendment protections. 402 F.3d at 975. In that case, officers had a week to plan the execution of the warrants and were aware guard dogs resided at the premises to be searched. The Hells Angels Court emphasized that it was not a case “where the officer was reacting to a sudden unexpected situation” or needed to make a split-second judgment. Id. at 978. By contrast here, officers had minutes — not days — to discover and plan for handling any dogs in Plaintiffs’ backyard. Lieutenant Salkoff attempted to stir any dogs that might have been home before he entered the yard but saw no indications that dogs were present. Officers were unaware that the resident dogs were pit bulls, as opposed to a breed that may have been less sensitive to the intrusion or more readily controllable by Lieutenant Salkoff. For these reasons, the Ninth Circuit concluded that the facts in this case were sufficiently distinguishable from those in Hells Angels that the Court could not say that Lieutenant Salkoff’s actions in this more spontaneous confrontation violated clearly established law. Because Plaintiffs did not present, and the Court could not find, any cases clearly establishing that Lieutenant Salkoff’s actions were unreasonable, the Ninth Circuit Court of Appeals concluded that he was entitled to qualified immunity and summary judgment and affirmed with respect to his use of force against Plaintiffs’ dogs.
The Court remanded for further proceedings.
HOW THIS AFFECTS YOUR AGENCY
Agencies may observe that despite the Court’s conclusion as to the reasonableness of the use of force upon the dogs in this case, the Ninth Circuit noted that the officers may still be liable to the plaintiffs for the deaths of their dogs as a natural consequence of the warrantless search of their yard. Tatum v. Moody, 768 F.3d 806, 817 (9th Cir. 2014) (“Under [Section] 1983, ‘a person is responsible for the natural consequences of his actions.’” (simplified)) (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled in part on other grounds by Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)); Mendez, 581 U.S. at 431 (stating that, even where plaintiffs “cannot recover on their excessive force claim, that will not foreclose recovery for injuries proximately caused by the warrantless entry”). The ruling, accordingly, does not foreclose a potential adverse ruling on negligence grounds. In sum, if in doubt, seek a warrant to conduct a search of the premises.
As always, if you wish to discuss this matter in greater detail, please feel free to contact Jim Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com
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[1] 2025 U.S. App. LEXIS 23117 (9th Cir. Sept. 8, 2025).
[2] Storm’s alert came at least eighteen minutes after officers had last seen the person they were looking for, but the Court of Appeals stated that the record suggested it may have been much later. Officer Rose saw someone flee at around 3:47 p.m. and Lieutenant Salkoff responded to the scene with Storm at approximately 4:05 p.m. Lieutenant Salkoff did not recall precisely when or where he started his search and stated he may have searched one yard or more than a dozen yards before Storm smelled fear in the air. Officer Rose recalled that the search lasted for more than an hour and possibly for two or three hours.