NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 23 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MALIK LANGHAM, No. 24-7292 D.C. No. Plaintiff - Appellee, 4:22-cv-06284-YGR v.

MEMORANDUM*

JUSTIN NOYD, Patrol Officer,

Defendant - Appellant,

and

CITY OF UNION CITY, ELMORE

SPENCER, Patrol Officer,

Defendants.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted December 10, 2025** San Francisco, California

Before: BUMATAY, JOHNSTONE, and DE ALBA, Circuit Judges. Dissent by Judge BUMATAY.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Officer Justin Noyd appeals from the district court’s denial of summary

judgment on his qualified immunity claim and grant of summary judgment1 for

Malik Langham, proceeding pro se. Langham sued Officer Noyd under 42 U.S.C.

§ 1983 for violating Langham’s Fourth Amendment rights by failing to timely

obtain a search warrant for Langham’s cell phone. Pursuant to the collateral order

doctrine, we have jurisdiction under 28 U.S.C. § 1291 to consider an interlocutory

appeal of an order denying qualified immunity at summary judgment. Advanced

Bldg. & Fabrication, Inc. v. Cal. Highway Patrol, 918 F.3d 654, 657 (9th Cir.

2019). We may resolve only questions of law. Id. at 657–58. We review de novo

the denial of qualified immunity at summary judgment, San Jose Charter of Hells

Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 970 (9th Cir. 2005), and

we affirm.

1. Officer Noyd does not contest the district court’s determination that

there were no genuine disputes of material fact, so the reasonableness of his

conduct “is a pure question of law.” Scott v. Harris, 550 U.S. 372, 381 n.8 (2007).

The 36-day delay was “longer than reasonably necessary” for Officer Noyd,

“acting with diligence, to obtain [a search] warrant.” See Illinois v. McArthur, 531

U.S. 326, 332 (2001); United States v. Dass, 849 F.2d 414, 414–15 (9th Cir. 1988)

1 Because we affirm the district court’s denial of qualified immunity, we conclude that we lack pendent jurisdiction over the grant of summary judgment for Langham. See Cunningham v. Gates, 229 F.3d 1271, 1285–86 (9th Cir. 2000).

2 24-7292 (holding that 7 to 23-day delays between warrantlessly seizing packages and

securing search warrants were unreasonable and violated the Fourth Amendment).

Langham had an undiminished possessory interest in his phone; he sought return of

the phone on September 1, 2022, but his request was denied because Officer Noyd

had not yet applied for a warrant.2 See Riley v. California, 573 U.S. 373, 385

(2014) (“cell phones [] are now such a pervasive and insistent part of daily life that

the proverbial visitor from Mars might conclude they were an important feature of

human anatomy.”); cf. United States v. Sullivan, 797 F.3d 623, 633 (9th Cir. 2015);

United States v. Johns, 469 U.S. 478, 487 (1985). Officer Noyd offered evidence

that he was busy. However, there is no evidence showing that Officer Noyd

pursued the investigation into Langham or took any action to procure a search

warrant before Langham asked for his phone’s return. That the September 1, 2022

search warrant solely relied on facts known to Officer Noyd at the time he

warrantlessly seized the phone on July 27, 2022, and was applied for and granted

on the same day Langham asked for the phone back, shows that the delay could

have been shorter if Officer Noyd had acted diligently. See Dass, 849 F.2d at 415.

2. Langham satisfied his burden of showing a clearly established right.

See Emmons v. City of Escondido, 921 F.3d 1172, 1174 (9th Cir. 2019). It was

2 Langham’s phone was returned to him on November 28, 2022, pursuant to a court order.

3 24-7292 clearly established that officers violate the Fourth Amendment if their lack of

diligence in pursuing their investigation causes an unreasonable delay in obtaining

a search warrant for warrantlessly seized property. See United States v. Place, 462

U.S. 696, 709 (1983) (noting that in assessing whether the length of detention was

reasonable, “we take into account whether the police diligently pursue[d] their

investigation.”); Dass, 849 F.2d at 414–15 (determining that the delays in securing

search warrants were unreasonable because the delays would have been shorter

“had the police acted diligently.”); cf. McArthur, 531 U.S. at 332 (holding that a

two-hour delay under the exigent circumstance warrant exception was reasonable

because the “time period was no longer than reasonably necessary for the police,

acting with diligence, to obtain the warrant.”).

AFFIRMED.

4 24-7292

FILED

DEC 23 2025

Langham v. Noyd, et al., No. 24-7292 MOLLY C. DWYER, CLERK BUMATAY, Circuit Judge, dissenting: U.S. COURT OF APPEALS

Even if failing to obtain a search warrant for a cellphone within 36 days

violated Malik Langham’s Fourth Amendment right, no case provides “clearly

established law,” and so Officer Justin Noyd is entitled to qualified immunity. See

Pearson v. Callahan, 555 U.S. 223, 227 (2009).

Union City Police Department Officers pulled over Langham for a series of

traffic violations. During the stop, Officer Noyd learned that Langham had a

suspended California driver’s license and an outstanding warrant for failure to

appear based on various firearms charges. Before towing the vehicle, the officers

found a gun without a serial number, and an illegal large capacity magazine in the

center console. Officer Noyd also found Langham’s cellphone and seized it,

believing it might contain evidence of his illegal firearms or other criminal activity.

Thirty-six days after the initial traffic stop, Langham came to the Union City police

department to request his phone. That same day, a detective in the police department

completed a search warrant, which was signed and approved by a magistrate judge

later that same day.

Officer Noyd blames the delay in obtaining the search warrant on the increase

in violent crime and shootings in Union City. He explained that he could not draft

the search warrant because of his many roles in the police department. Langham doesn’t rebut any of these facts. And he hasn’t offered any evidence that the delay

in returning the phone caused him any hardship.

The Supreme Court has repeatedly admonished lower courts for reading

clearly established law “at a high level of generality.” Ashcroft v. al–Kidd, 563 U.S.

731, 742 (2011). Especially in the Fourth Amendment context, we are looking for

cases that establish bright lines for officers to easily follow. General statements of

the law are incapable of giving this fair notice to officers. White v. Pauly, 580 U.S.

73, 79 (2017).

The district court cited no case to support that the officer’s conduct violated

clearly established law, only citing Riley v. California to explain that cellphones are

a “pervasive and insistent part of daily life.” 573 U.S. 373, 388 (2014). That’s

obviously not enough.

And none of the cases cited by the majority provide clearly established law.

Start with United States v. Place. The only issue in that case was, as the Court itself

saw it, “whether the Fourth Amendment prohibits law enforcement authorities from

temporarily detaining personal luggage for exposure to a trained narcotics detection

dog on the basis of reasonable suspicion that the luggage contains narcotics.” 462

U.S. 696, 697–98 (1983). You’ll notice that almost none of that has any resemblance

to this case. Indeed, the Court focused almost entirely on whether a seizure could

be done with less than probable cause. Without probable cause, the Court held the

2 24-7292 90-minute seizure of the defendant’s luggage was unreasonable. Id. at 709. The

Court provided only the broadest of general rules: “[I]n assessing the effect of the

length of the detention, we take into account whether the police diligently pursue

their investigation.” Id. Indeed, the Court expressly disclaimed providing “any

outside time limitation” for permissible seizures. Id. Our case deals with a different

question: how long may an officer reasonably delay obtaining a search warrant for

a cellphone seized with probable cause when the officer has other law enforcement

duties and the defendant never seeks the phone’s return for 36 days? Place doesn’t

answer that question.

MacArthur is also not on point. In that case, the Court considered whether

police officers may prevent a man believed to hiding marijuana in his home from

entering his home for two hours while they obtained a search warrant. Illinois v.

McArthur, 531 U.S. 326, 328 (2001). The Court blessed the police action because

of the exigency of the circumstances. Id. at 332. One factor in this analysis was the

“limited period of time” of the restraint at issue. Id. The Court observed, as a matter

of fact, “[a]s far as the record reveals, this time period was no longer than reasonably

necessary for the police, acting with diligence, to obtain the warrant.” Id. This was

not announcement of a brightline rule. It is simply an observation that, of course,

taking “no longer than reasonably necessary” would not violate the Fourth

Amendment. It provided no boundaries on what’s an impermissible time.

3 24-7292 Finally, there’s United States v. Dass, 849 F.2d 414, 415 (9th Cir. 1988). Dass

does offer a brightline rule—but that rule has nothing to do with this case. Dass

suggested there is a 29-hour “outer limit” for obtaining a search warrant to search

seized mailed packages. Id. Dass then ruled that the search in that case “far

exceeded the 29 hours” rule. Id. Of course, Dass found that the “delays could have

been much shorter . . . if the police had acted diligently.” Id. But it was the “outer

limit” holding driving its decision. And no one—even the majority—suggests that

Officer Noyd needed to obtain the search warrant for the phone within 29 hours.

Thus, these cases don’t clearly establish that Officer Noyd violated

Langham’s Fourth Amendment right. And in fact, other cases point against this

conclusion. See United States v. Sullivan, 797 F.3d 623, 634–35 (9th Cir. 2015)

(“An individual who . . . never sought return of the property has not made a sufficient

showing that the delay was unreasonable.”) (simplified).

We should have reversed and granted qualified immunity to Officer Noyd. I

respectfully dissent.

4 24-7292