NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 17 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANK JOHNSON, No. 21-55666

Plaintiff-Appellant, D.C. No. 2:20-cv-05178-SVW-GJS v.

CITY OF MORRO BAY, a municipal entity; MEMORANDUM* WILL MARVOS, an individual; JEREMY PAINTER, an individual,

Defendants-Appellees,

and

UNKNOWN OFFICERS AND

PERSONNEL OF THE MORRO BAY

POLICE DEPARTMENT; DOES, 2-10,

inclusive,

Defendants.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted June 7, 2022 Pasadena, California

Before: M. SMITH, BADE, and VANDYKE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiff asks this court to reverse the district court’s entry of partial summary

judgment in favor of Defendants on his Fourth Amendment unreasonable seizure

claim. The material facts in this case are undisputed, and there is uncontroverted

body camera footage of Plaintiff’s encounter with the police. Because the parties

are familiar with the facts, we do not recount them here, except as necessary to

provide context to our ruling. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

Plaintiff contends that the Defendant officers violated the Fourth Amendment

by arresting him in his home without a warrant. Plaintiff admittedly “stepped outside

to meet the officers in the driveway,” which is undisputedly a “common-area.”

Plaintiff spoke with the officers briefly before inviting them into his residence. The

officers initially declined to enter, but Plaintiff insisted. The officers entered

Plaintiff’s home and arrested him a few minutes later. It is undisputed that the

officers had probable cause to arrest Plaintiff.

Plaintiff took himself outside of the physical zone of privacy of his residence

by crossing the threshold and entering the common-area driveway. See United

States v. Watson, 423 U.S. 411, 423–24 (1976) (holding that a warrantless arrest of

an individual in a public place upon probable cause does not violate the Fourth

Amendment); cf United States v. Quaempts, 411 F.3d 1046, 1048–49 (9th Cir. 2005)

(holding that because the defendant “did not take himself outside the physical zone

2 of privacy of the house . . . the officers could not make a warrantless arrest.”).

Once in public, Johnson invited the officers into his home. The undisputed

bodycam footage shows that he consented to the warrantless arrest. See United

States v. Garcia, 997 F.2d 1273, 1278, 1281 (9th Cir. 1993) (finding an inference of

consent when a defendant opened his door and, after law enforcement officers said,

“we’d like to talk to you,” the defendant responded, “‘okay,’ nodded and stepped

back”). Accordingly, United States v. Lundin, 817 F.3d 1151 (9th Cir. 2016), is

distinguishable, and we see no violation of Plaintiff’s Fourth Amendment right to be

free of an unlawful seizure.

AFFIRMED.

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