United States v. Jenkins, James E. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4114
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES EARL JENKINS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:02CR00080-001—Larry J. McKinney, Chief Judge.
____________
ARGUED APRIL 22, 2003—DECIDED MAY 15, 2003
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Before COFFEY, RIPPLE, and EVANS, Circuit Judges.
COFFEY, Circuit Judge. Responding to a 911 emergency
call of an assault, a police officer entered the home of
James Jenkins and found a sawed-off shotgun. Jenkins
was charged with possession of a firearm and ammuni-
tion by a felon, 18 U.S.C. § 922(g)(1), as well as possession
of an unregistered firearm, 26 U.S.C. § 5861(a). Jenkins
moved to suppress the shotgun, arguing that the officer
illegally entered his home without a warrant. The district
court denied the motion, and Jenkins pleaded guilty to
possession of a firearm by a felon. He reserved his right to
challenge on appeal the denial of his motion to suppress.
We affirm.
2 No. 02-4114
At approximately 1:47 a.m., an Indianapolis police
dispatcher received a 911 telephone call from a woman
who identified herself as Rhonda Barnett. Barnett re-
ported an assault in her home on a man named James
Jenkins, but she was unclear regarding whether the as-
sault was in progress. The dispatcher directed officer
Michelle Tomey to the address from which the call origi-
nated and told Officer Tomey that Barnett was “irate and
hysterical” and that Barnett had hung up the telephone
before the dispatcher could receive more information.
Because Barnett was vague regarding the status of the
assault, Officer Tomey treated the situation as an assault
in progress. Officer Tomey, who was alone, arrived at the
address a few minutes later. Another officer had also
been dispatched to the address, but Officer Tomey did not
wait for that officer to arrive before approaching the
residence. When Officer Tomey reached the front door she
noticed that it was open approximately eight inches. She
also heard a noise coming from inside, which she described
as sounding “like a person standing up and falling down.”
She knocked on the door and announced herself as a po-
lice officer. She received no response and again knocked
and announced her presence. When no one answered,
Officer Tomey pushed open the door.
Officer Tomey then saw a man (later identified as
DeQuincy Hazelwood) in the house walking towards her.
His mouth was bleeding, and he did not respond to her
questions regarding whether anyone else was in the house.
In the meantime, Officer Tomey continued to hear the
sound of someone standing up and falling down “as if they
were trying to get help and they weren’t able to get it.”
Officer Tomey believed that the sound was coming from
behind a sheet that she saw dividing two rooms. She then
stepped inside the house and directed Hazelwood to sit
down on the couch. Behind the sheet Officer Tomey found
Jenkins “lying in a fetal position . . . bleeding profusely.”
No. 02-4114 3
She announced that anyone else in the house should
come out, and she heard a woman say, “I’m right here.” She
then saw Barnett and noticed a sawed-off shotgun lying
on a bed. Officer Tomey then called an ambulance for
Jenkins.
Barnett told Officer Tomey that the shotgun belonged to
Jenkins, and the police later learned that Jenkins had
several felony convictions. He was then arrested, but he
moved to suppress the shotgun, arguing that it should
be excluded because Officer Tomey entered his home
without a warrant. The district court denied the motion,
concluding that Officer Tomey did not need a warrant
because the 911 call, the “standing up and falling down
noise,” the partially open door, and the presence of
Hazelwood in a state of confusion amounted to exigent
circumstances.
On appeal Jenkins contends that the district court
erred in considering the presence of Hazelwood when
denying the suppression motion because Hazelwood’s
presence was not known to Officer Tomey until after
she had already begun her search by pushing open the front
door. Jenkins also argues that exigent circumstances
to justify the search did not exist when Officer Tomey
pushed open the door.
Police generally need a warrant to enter a home, but
“warrantless searches will be allowed when police have
a reasonable belief that exigent circumstances require
immediate action and there is no time to secure a war-
rant.” United States v. Lenoir, 318 F.3d 725, 730 (7th Cir.
2003). One such circumstance is when the police “reason-
ably fear[ ] for the safety of someone inside the premises.”
United States v. Richardson, 208 F.3d 626, 629 (7th Cir.
2000). The safety of others is a particular concern when
police respond to a report of a crime in progress, and, in
such a situation, police judgments regarding warrantless
4 No. 02-4114
entries “should be afforded an extra degree of deference.”
Reardon v. Wroan, 811 F.2d 1025, 1029 (7th Cir. 1987). To
justify a warrantless entry, the exigent circumstances
must be known to the officers “at the time of the war-
rantless entry” and cannot be based on evidence discov-
ered during the search. United States v. Rivera, 248 F.3d
677, 680-81 (7th Cir.), cert. denied, 534 U.S. 923 (2001);
accord United States v. Arch, 7 F.3d 1300, 1304 (7th Cir.
1993).
The parties dispute whether the district court erred
in considering Hazelwood’s presence when it concluded
that exigent circumstances justified Officer Tomey’s entry.
We need not decide that issue because, even exclud-
ing Hazelwood’s presence, exigent circumstances justified
the entry. Police received a 911 emergency call of an
assault, possibly in progress. Such calls, by themselves,
“can be enough to support warrantless searches under the
exigent circumstances exception, particularly where . . .
the caller identified himself.” Richardson, 208 F.3d at
630; accord United States v. Holloway, 290 F.3d 1331, 1338-
39 (11th Cir. 2002) (anonymous caller), cert. denied, 123
S. Ct. 966 (2003); United States v. Cunningham, 133 F.3d
1070, 1071-72 (8th Cir. 1998) (caller identified herself). But
see Kerman v. City of New York, 261 F.3d 229, 235-36 (2d
Cir. 2001) (warrantless search based on 911 call illegal
because caller remained anonymous and police did not
corroborate the information). Barnett identified herself
when reporting the assault. Additionally, Officer Tomey
found the front door open in the middle of the night and
heard a noise from inside the house that sounded like a
person standing up and falling down. Based on those
circumstances, a reasonable officer would have feared for
the safety of someone inside. Accordingly, because exigent
circumstances justified Officer Tomey’s entry, we uphold
the district court’s denial of Jenkins’s motion to suppress.
AFFIRMED.
No. 02-4114 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-15-03