There's a fine line between reasonable suspicion and probable cause, and when you throw in concepts like curtilege and exigent circumstances, things get even more complicated.
So today the Ninth Circuit reverses a criminal conviction on Fourth Amendment grounds. But it's an opinion that the Supreme Court might well take up and reverse. Notwithstanding the fact that it's fact-specific and without dissent.
The central problem is that while Judge Berzon does a good job of explaining why a reversal is required, the police here did precisely what a lot of justices on the Court (and others) would want them to do. A neighbor dials 911 to report that someone just jumped over the fence of a house and that the owners are at work. So she (and the police) are thinking: Burglary. So they go to the house and, yep, there's exactly the dude the witness describes. So they confront the guy (with guns drawn) by entering the back yard, at which point they find a weapon. Busting the guy for being a felon in possession and getting a 17 year sentence.
Now, it turns out that the guy did indeed live there. And Judge Berzon's undoubtedly right that there were plenty of things the police could have done before busting the guy; e.g., asked him or the witness some questions, etc. But I doubt the Supreme Court's going to see it the same way, or be inclined to "require police officers to speculate in the heat of the moment about what hypothetical alternatives a federal court might prefer." (My language, but along the lines of what I think the Court might say.)
So I totally understand where the panel's coming from, since I too have occasionally jumped the fence of my house and tried to get inside. And I'd indeed have been bummed had one of my neighbors seen me and called the police and thus subject me to an arrest at gunpoint.
But I think the Court would say (1) that's pretty rare, (2) especially compared to the number of times the arrested person would turn out to be an actual burglar, and (3) worth it.
So we'll see where this one goes. And, regardless, don't jump over your own fence if you're high on methamphetamine and a felon in possession. Bad idea.
