United States v. Russell ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 04-10681
v.
 D.C. No.
CR-04-00054-LKK
WILLIE RUSSELL, JR., a/k/a Wild
Bill, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior Judge, Presiding
Argued and Submitted
November 15, 2005—San Francisco, California
Filed January 30, 2006
Before: Diarmuid F. O’Scannlain, Sidney R. Thomas, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge O’Scannlain;
Partial Concurrence and Partial Dissent by Judge Thomas
1209
1212 UNITED STATES v. RUSSELL
COUNSEL
Quin Denvir, Federal Defender, Sacramento, California,
argued the cause and was on the briefs for the appellant.
William S. Wong, Assistant United States Attorney, Sacra-
mento, California, argued the cause for the appellee. McGre-
gor W. Scott, United States Attorney, was on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
This case requires us to consider whether the emergency
doctrine or implied consent can support a warrantless search
of a home on suspicion that a 9-1-1 caller or lurking predator
was inside.
I
On Saturday, December 23, 2003, Willie Russell, Jr.,
placed two calls to the Sacramento Sheriff’s Office (SSO)
UNITED STATES v. RUSSELL 1213
9-1-1 dispatcher. In the first emergency call, Russell identi-
fied himself as “Gregory Hines,” and explained to the opera-
tor that a gun went off and hit him in the foot, that he was
wounded and in pain, and that he wanted the dispatcher to call
an ambulance. The transcript of the first call shows that the
Fire Dispatcher and the SSO Dispatcher were confused as to
whether the caller had been shot, or had shot himself. After
Russell’s call was disconnected, the SSO Dispatcher said to
the Fire Dispatcher “[the caller] didn’t really confirm that he
shot himself. He just said a ‘gun went off.’ ” Each patrol car
contained a mounted computer system and monitor, known as
a “Mobile Data Terminal,” which allows field officers to
receive information pertinent to their calls through a “Com-
puter Aided Dispatch,” or CAD, which updates text provided
by 9-1-1 dispatchers on screens in the police officers’ cars. In
this case, the CAD Event Report displayed to responding offi-
cers: “male stated gun went off and he shot [sic] in foot.”
Russell called back and spoke to a second emergency dis-
patcher, giving his real name and address and stating, “I shot
myself in the foot.” Over the course of the phone call, Russell
explained that he was “moving” the gun out of his bedroom
closet when it went off. When asked whether he knew where
the gun was currently, Russell first stated, “I don’t know,”
then stated that he “left [the gun] upstairs somewhere. I
dropped it on top of stuff on the floor.” Russell also stated
that “my girlfriend is going to kill me.” Police were aware of
Russell’s comments; the CAD Event Report displayed: “[Wil-
lie is] sayin that his gf [girlfriend] is goin to kill him when she
finds out what he did . . . gf not @ resd rite now [sic].”
The dispatchers asked whether Russell was alone, and he
twice responded that nobody else was present. Again, the
CAD Event Report reported to the responding officers that
“Willie Russell . . . sed [sic] he is home alone.” Later in the
phone call, the dispatcher apparently overheard two unidenti-
fied female voices and asked whether there were other people
there at that point, but Russell did not respond. The transcript
1214 UNITED STATES v. RUSSELL
of the phone call shows that female voices could be heard
asking about the gun and whether Russell planned to give it
to the police. An unidentified female voice asked: “Where’s
the gun at? Are you going to give ‘em the gun?” The CAD
Event Report informed the officers that the dispatcher “heard
male & fem voice in bkgrnd askn what was goin on [sic].”
Russell told the dispatchers that he had opened the front
door for the police:
Russell: I’m at the front door. I don’t have the gun.
SSO: You’re at the front door.
Russell: Yes, I crawled to the front door.
SSO: Okay, is the door unlocked?
Russell: Yes, I opened the door for them.
SSO: Okay, the door is open?
Russell: Please don’t make me suffer.
SSO: The door is open or it’s unlocked?
Russell: The door is open.
After his first call, the emergency dispatchers alerted
police, who initially anticipated finding an injured man named
“Gregory Hines,” the pseudonym Russell supplied to the first
emergency dispatcher. While en route the officers received
updated information that a second man, “Willie Russell,” was
injured. As the officers neared Russell’s house, the dispatcher
informed them that the injured man did not know where the
gun could be located, and that the injured man had opened the
door for the police. Neither the police nor the emergency dis-
UNITED STATES v. RUSSELL 1215
patchers were aware that Willie Russell and Gregory Hines
were one and the same.1
Deputy Summer Elliott arrived near the scene first but
waited outside the cul-de-sac entrance to the street until other
units arrived. When asked why she did not enter the neighbor-
hood herself, Deputy Elliott responded that “it is not safe to
do so by myself with the unknown circumstances that was
[sic] going on at the house. . . . A gun was discharged, and
we don’t really know what’s going on inside.” Similarly, Ser-
geant Roger Dillon explained that “Deputy Elliott staged
around the corner. It’s a safety issue. We don’t go to those
kind of calls by ourselves because of — they’re not stable and
the potential of getting hurt. So she staged around the corner.”
When other units arrived, Deputy Elliott, along with Sergeant
Roger Dillon and Deputy Brian Templeton, entered the neigh-
borhood.
Deputy Elliott testified that she saw a man—Russell,
though Deputy Elliott did not know this yet—“hopping out to
the car with two other females coming out of the garage
door.” Sergeant Dillon noted that there were two women with
the injured man, though he had expected him to be alone. He
testified that:
all the call kept saying is that there is no one else in
the house, but then we’re getting the conflicting
information of other names. I did not — I did not see
anything in the events or hear anything on the radio
that would tell me that there were females on the
scene at all.
The other officers were not asked whether they expected Rus-
sell to be alone.
1
The parties did not supply a record of any radio transmissions between
dispatchers and the responding officers, so our analysis follows the facts
presented in the exhibits and testimony from the pretrial suppression hear-
ing.
1216 UNITED STATES v. RUSSELL
Deputy Elliott ordered Russell out of the car and began
questioning him, but kept her weapon holstered. When Dep-
uty Elliott asked Russell to identify himself, he refused. Dep-
uty Elliott was similarly rebuffed when she asked Russell
“what happened there.” Russell did not express to Deputy
Elliott any objection to the entry of the other officers into the
residence.
While Deputy Elliott was questioning Russell outside the
house, Sergeant Dillon and Deputy Templeton immediately
entered the house with their guns drawn. Sergeant Dillon tes-
tified that “for my safety, I drew my gun and kept it in a ready
position where I could engage anyone who might pop up out
of a closet, out of a doorway, out of anywhere.” Sergeant Dil-
lon explained that his “intent was to go through the house to
look to see if there were any other victims inside the resi-
dence, anyone that was injured and needed medical attention,
or if there was a suspect that may have injured the subject
who in the event claimed to have been shot in the foot.” He
testified that “I was looking for another victim. And I was
looking for possibly an armed subject inside the house.” Ser-
geant Dillon then found the weapon in plain view in Russell’s
bedroom, but found no other person—injured or otherwise.
Russell was charged with a violation of 18 U.S.C.
§ 922(g)(1), which makes unlawful the possession of a fire-
arm by a convicted felon. Russell moved to suppress the gun
evidence. The district court denied the motion after an eviden-
tiary hearing, holding that the exigent circumstances excep-
tion supported the search, and in the alternative, that Russell
had consented to the search of his residence:
The situation was one in which there was suffi-
cient uncertainty that it made perfect sense for the
law enforcement officers to try to ensure that there
wasn’t another victim—or there might be some other
circumstances which would require their clearing the
house.
UNITED STATES v. RUSSELL 1217
I also believe . . . that there was a consent and that
the consent was not conditioned. And that while I
agree with [defense counsel] that the circumstances
giving rise to the consent no longer applied, the con-
sent was still out there.
Russell subsequently entered a guilty plea pursuant to an
agreement that reserved his right to appeal the denial of his
motion to suppress.2
II
[1] Russell contends that the warrantless search cannot be
sustained under the emergency doctrine. Our case law recog-
nizes that the emergency doctrine, an exception to the warrant
requirement, may support a warrantless search “if a police
officer, while investigating within the scope necessary to
respond to an emergency, discovers evidence of illegal activ-
ity, that evidence is admissible even if there was not probable
cause to believe that such evidence would be found.” United
States v. Cervantes, 219 F.3d 882, 888 (9th Cir. 2000). See
also United States v. Stafford, 416 F.3d 1068, 1073 (9th Cir.
2005).
The emergency doctrine derives from Mincey v. Arizona,
437 U.S. 385 (1978), which recognized police officers’ com-
munity caretaking function. See id. at 392 (noting that the
Court did “not question the right of the police to respond to
emergency situations” without a warrant). United States v.
Cervantes—building on Mincey—adopted three requirements
for the emergency doctrine:
2
Whether exigent circumstances support a warrantless search is a mixed
question of law and fact which we review de novo. United States v.
Bynum, 362 F.3d 574, 578-79 (9th Cir. 2004); United States v. Zermeno,
66 F.3d 1058, 1063, n. 2 (9th Cir. 1995). We review findings of fact
underlying the district court’s determination for clear error. Bynum, 362
F.3d at 578-79.
1218 UNITED STATES v. RUSSELL
(1) The police must have reasonable grounds to
believe that there is an emergency at hand and
an immediate need for their assistance for the
protection of life or property.
(2) The search must not be primarily motivated by
intent to arrest and seize evidence.
(3) There must be some reasonable basis, approxi-
mating probable cause, to associate the emer-
gency with the area or place to be searched.
219 F.3d at 888 (quoting People v. Mitchell, 39 N.Y.2d 173,
347 N.E.2d 607, 609, 383 N.Y.S.2d 246 (N.Y. 1976)). See
also United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir.
2005); Martin v. City of Oceanside, 360 F.3d 1078, 1082 (9th
Cir. 2004); United States v. Bradley, 321 F.3d 1212, 1214
(9th Cir. 2003).
A
Russell first argues that the police did not have “reasonable
grounds to believe that there [was] an emergency at hand and
an immediate need for their assistance for the protection of
life.” Cervantes, 219 F.3d 888.
1
[2] Our analysis of the record indicates that even though the
police observed that one man had exited the residence before
they arrived, there was confusion as to whether this was the
only injured person. The police had reason to believe that
there were two injured men at Russell’s residence—one
named Gregory Hines and the other named Willie Russell.
Indeed, the police received a variety of conflicting data. They
were told first, that one person had been shot in the foot; then
another shot himself in the foot; then the police were told the
caller was alone; then that his girlfriend was going to kill him;
UNITED STATES v. RUSSELL 1219
and then that Russell might not be alone. When the police
finally arrived at Russell’s home, they found one injured per-
son (rather than two) in the driveway (rather than in the
house) accompanied by two women (rather than alone). Given
the substantial confusion and conflicting information, the
police were justified in searching the house in order to deter-
mine whether there were other injured persons, as their infor-
mation indicated was the case.
2
[3] Russell next argues that it was “manifest” that only one
person had placed two phone calls. We disagree. Even in
retrospect, the officers’ confusion is understandable. In Rus-
sell’s first call, the emergency dispatch operator noted that the
victim stated that he had been shot, not that he had shot him-
self. When Russell placed a second call and spoke with a dif-
ferent emergency operator and stated that he had shot himself,
the circumstances he described were different. Even with per-
fect information and sufficient time to digest and analyze it,
the police would still have been justified in entering the house.3
Thus, given the circumstances, it cannot be said that the situa-
tion was clear, or that the fact of a sole injured person was
evident, or even that the shooting had been accidental.
[4] Even if the situation were clear in hindsight, however,
the police had only a few minutes in which to determine
whether a lurking predator or injured person in need of assis-
tance might be inside the house. It is unreasonable to expect
the police to piece together a perfectly coherent picture in the
scant minutes they had to digest the constantly-updated and
conflicting information. See Graham v. Connor, 490 U.S.
3
Russell attempts to rely on the collective knowledge doctrine, which
extends to the knowledge of the police dispatchers. See United States v.
Fernandez-Castillo, 324 F.3d 1114, 1118 (9th Cir. 2003). However,
because Russell spoke to two different emergency operators, no single
operator was aware that the same injured person had placed both calls.
1220 UNITED STATES v. RUSSELL
386, 397 (1989) (cautioning against second-guessing police
officers, who “are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving”).
3
Russell also argues that our prior cases emphasize that the
officers must first determine that there was an emergency
before entering the house. In United States v. Bradley, for
example, the court noted that “before the officers entered the
house, they took several other steps,” including knocking on
the front door and speaking with neighbors before entering
the house. 321 F.3d at 1215. In United States v. Deemer, the
officers, responding to an emergency call from an intoxicated
caller, only made an emergency entry after the woman who
answered the door stated that she was alone, but police heard
movement behind the door. 354 F.3d 1130, 1132 (9th Cir.
2003). Russell also points to Martin v. City of Oceanside,
where the police, responding to a concerned father’s call
about his daughter, spoke to neighbors before entering the
house. 360 F.3d at 1082. Finally, in United States v. Martinez,
we affirmed the district court’s denial of a motion to suppress
based on the emergency doctrine where the police responded
to a domestic violence call and entered the house only after
hearing screaming coming from inside. 406 F.3d 1160. Based
on this case law, Russell argues that the police should have
stopped to speak with him, or his mother or girlfriend who
were helping him into the car, to determine whether there
were additional injured persons in the house.
[5] Russell’s argument is unconvincing for several reasons.
Most obviously, our case law clearly requires that the police
must only have “reasonable grounds to believe that there is an
emergency at hand and an immediate need for their assistance
for the protection of life.” Cervantes, 219 F.3d at 888. Rus-
sell’s analysis, however, would incorporate a fourth require-
ment into the emergency doctrine: that the police obtain
UNITED STATES v. RUSSELL 1221
independent verification or other information relating to the
emergency before entering the house.4 We decline to read an
additional limitation into the emergency exception’s settled
case law. Further, such a requirement would dramatically
slow emergency response time, and would therefore be at
odds with the purpose of the emergency doctrine—
“allow[ing] police to respond” to emergency situations.5
Mincey, 437 U.S. at 392. The only requirement—which the
police easily met—is that they have “reasonable grounds to
believe that there is an emergency at hand.” Given the cir-
cumstances, the officers and dispatchers clearly believed there
was an ongoing emergency.6
Further, Bradley, Martin, and Deemer do not stand for the
proposition for which Russell cites them. In each of these
cases, the police had to take additional steps to determine
whether there was an emergency that justified entry in the
first place. In Bradley, the police “could not locate [the miss-
ing child] in the places [his mother] said he was.” 321 F.3d
at 1215. In order to determine whether there was actually an
emergency that justified entry, the police took steps to deter-
mine if the child was with neighbors before entering Russell’s
house. Similarly, in Martin, the police were responding to a
father concerned about his daughter—who had not answered
her phone—and were therefore uncertain whether there was
4
We agree with the dissent’s characterization of the emergency excep-
tion as “well-delineated.” Dissent at 1225 (quoting Martinez, 406 F3d. at
1164). This is precisely why we decline to read a further requirement into
the exception.
5
Indeed, the facts of this case illustrate why such a requirement would
be dangerous: had the police been forced to stop and speak with Russell,
who steadfastly refused to divulge any information to officers on the
scene, their capability to rescue a potentially injured person inside would
have been dramatically handicapped.
6
What’s more, the district court concluded that the police believed there
was an emergency. While the dissent reaches a different conclusion, Dis-
sent at 1228-29, we may not disturb the district court’s factual conclusion
unless clearly erroneous, which it is not. Bynum, 362 F.3d at 578-79.
1222 UNITED STATES v. RUSSELL
an actual emergency. In Deemer, again, the police were
uncertain whether there was any emergency basis for entering
the motel room, so they spoke to the woman who answered
the door. In Martinez, in contrast, the police entered the house
because the circumstances—a bruised female outside and
screaming coming from the inside—indicated that there was
an emergency. These cases indicate that the police only must
take additional steps if they otherwise lack reasonable
grounds to believe there is an emergency. Cervantes requires
no more, and our case law imposes no additional restriction
beyond the reasonable grounds requirement.
[6] Applying these cases to the present facts, the police had
good reason to believe that there was an emergency and did
not need independent confirmation: they had already received
two emergency phone calls, saw only one severely injured
person when they arrived at the scene, and therefore had rea-
sonable grounds to believe another might be inside the house.7
Therefore, the district court did not clearly err in concluding
that the officers had reasonable grounds to believe that there
was an emergency requiring their immediate intervention.
B
[7] Next, Russell suggests improper motive. We are satis-
fied that the district court did not clearly err in determining
7
The dissent argues that in Russell’s second call he cleared up the con-
fusion he created by “describ[ing] what had happened in detail” and
“verify[ing] that he was alone in the house.” Dissent at 1226. However,
Russell never explained to the emergency dispatcher that he had previ-
ously reported a similar—though not identical—shooting under a different
name. Similarly, shortly after Russell “verified that he was alone,” dis-
patchers overheard voices in the background. Dissent at 1226. Even if an
omnipotent dispatcher had concluded that one of the voice’s was that of
Russell’s girlfriend, this could hardly assuage the officers’ concern—after
all, Russell had just stated that his girlfriend was going to kill him. See
supra at 1213. Russell may have intended to explain and defuse the situa-
tion, but we conclude, like the district court, that he failed miserably.
UNITED STATES v. RUSSELL 1223
that the police entered Russell’s house motivated by an intent
to determine if there were any remaining victims or lurking
predators who might harm or harass emergency personnel.
The police entered the house with their guns drawn and swept
through the house in less than two minutes, a style of search
clearly inconsistent with an intent to discover and seize evi-
dence.8 In any event, the district court made a factual decision
to credit the officers’ testimony regarding their motive, con-
cluding that it was benign. Even if the facts support other con-
clusions, they do not compel one in particular. The district
court’s conclusion—that the discovery of the evidence was
only ancillary to the officers’ main goal—was not clearly
erroneous.
C
Finally, Russell suggests that the search was excessive. Our
review indicates that the district court did not clearly err in
determining that the police had a reasonable basis to associate
the places searched with the emergency in question. The
police searched only areas in which a potential criminal could
have been hiding in wait and areas in which an additional vic-
tim would have been waiting for assistance. The police
searched no drawers or other areas where an armed or injured
person could not conceivably have been hidden.
III
Russell also challenges the district court’s alternative hold-
ing that consent to the search was implied. In light of our con-
clusion that the search was supported by the emergency
doctrine, we need not address the implied consent issue.
8
Following the discovery of the gun, and after radioing to fire and medi-
cal assistance teams that the scene was clear, the police engaged in a gen-
eral search of the residence. As noted by the district court, however, the
police initiated this search after discovering the gun. It is not, therefore,
relevant to the question whether the initial emergency search, which was
extremely brief, was proper.
1224 UNITED STATES v. RUSSELL
IV
[8] Russell urges that a limited Ameline remand should be
available because he has an “unpreserved Booker error that
may have affected [his] substantial rights, and the record is
insufficiently clear to conduct a complete plain error analy-
sis.” United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir.
2005) (en banc). Russell was indeed sentenced under the Sen-
tencing Guidelines pursuant to a statute without a mandatory
minimum and did not present a Sixth Amendment challenge.
Therefore, “a limited remand to the district court is appropri-
ate for the purpose of ascertaining whether the sentence
imposed would have been materially different had the district
court known that the sentencing guidelines were advisory.”
Id. See also United States v. Murillo, 419 F.3d 906, 916 (9th
Cir. 2005).
AFFIRMED IN PART; REMANDED IN PART.
THOMAS, Circuit Judge, concurring in part and dissenting in
part:
I agree that an Ameline remand is appropriate in this case.
However, I respectfully disagree that the emergency doctrine
justified a warrantless search.
The emergency doctrine is a very limited and specific
exception to the requirement that a search warrant be obtained
before searching a private residence. “[P]hysical entry of the
home is the chief evil against which the wording of the Fourth
Amendment is directed.” Payton v. New York, 445 U.S. 573,
585 (1980) (quoting United States v. U.S. District Court, 407
U.S. 297, 313 (1972)). For that reason, “searches and seizures
inside a home without a warrant are presumptively unreason-
able.” Id. at 586. As the Supreme Court noted in Mincey v.
Arizona, 437 U.S. 385 (1978):
UNITED STATES v. RUSSELL 1225
The Fourth Amendment proscribes all unreasonable
searches and seizures, and it is a cardinal principle
that “searches conducted outside the judicial process,
without prior approval by judge or magistrate, are
per se unreasonable under the Fourth Amendment—
subject to a few specifically established and well-
delineated exceptions.”
Id. at 390 (quoting Katz v. United States, 389 U.S. 347, 357
(1967)).
We have defined two “specifically established and well-
delineated exceptions” to the warrant requirement: exigency
and emergency. United States v. Martinez, 406 F.3d 1160,
1164 (9th Cir. 2005). The exigency exception, which is not at
issue in this case, permits a warrantless search “if there is
probable cause to believe that contraband or evidence of a
crime will be found at the premises and that exigent circum-
stances exist.” Id. (citing United States v. Lai, 944 F.2d 1434,
1441 (9th Cir. 1991)).
At issue in this case is the emergency exception to the war-
rant requirement, which permits a warrantless search when
officers “reasonably believe that a person within is in need of
immediate aid.” Id. at 392. “The emergency doctrine is based
on and justified by the fact that, in addition to their role as
criminal investigators and law enforcers, the police also func-
tion as community caretakers.” United States v. Stafford, 416
F.3d 1068, 1073 (9th Cir. 2005).
However, “[t]he police’s authority to search and seize prop-
erty when acting in its role as ‘community caretaker’ has a
different source than its authority to search and seize property
to investigate criminal activity.” Miranda v. City of Cornelius,
429 F.3d 858, 863 (9th Cir. 2005). Because there are sharp
distinctions between the community caretaking and law
enforcement roles of the police, the analysis under the emer-
gency “community caretaker” doctrine differs significantly
1226 UNITED STATES v. RUSSELL
from the analysis we undertake when police are performing
law enforcement functions. Id.
Under the emergency community caretaker doctrine, the
reasonable suspicion must be of need, not criminal activity.
When law enforcement officers are rendering emergency aid,
they are performing a community caretaker function; when
they are investigating the cause of an emergency, they are
performing a law enforcement function.
To justify application of the emergency doctrine, three cir-
cumstances must exist:
(1) The police must have reasonable grounds to
believe that there is an emergency at hand and an
immediate need for their assistance for the protection
of life or property. (2) The search must not be pri-
marily motivated by intent to arrest and seize evi-
dence. (3) There must be some reasonable basis,
approximating probable cause, to associate the emer-
gency with the area or place to be searched.
United States v. Cervantes, 219 F.3d 882, 888 (9th Cir. 2000)
(quoting People v. Mitchell, 347 N.E.2d 607, 609 (N.Y.
1976)). We analyze the “reasonable grounds to believe that
there is an emergency at hand,” on an objective basis, taking
into consideration the collective knowledge of the officers at
the time. United States v. Sutton, 794 F.2d 1415, 1426 (9th
Cir. 1986).
In this case, dispatchers received two almost identical calls
from the same household indicating that a man had acciden-
tally shot himself in the foot. The dispatchers were uncertain
from the first call as to the source of the shooting, but they
never communicated that to the officers proceeding to the
scene. That uncertainty was cleared up in the second call, in
which Russell described what had happened in detail. He veri-
fied that he was alone in the house. He also answered the dis-
UNITED STATES v. RUSSELL 1227
patcher’s multiple questions about the location of the firearm,
culminating in this exchange:
Russell: Oh my goodness people — Oh, no.
Please. Please don’t let me die. Hello.
Dispatcher: I’m still here, Willie.
Russell: Why they not here, Ma’am?
Dispatcher: They’re on their way there. Okay?
Russell: (Moaning) Oh, my God. Oh, please tell
those people to hurry up.
Dispatcher: They’re on their way. I need you to
think about this. What happened to the
gun?
Russell: I left it upstairs somewhere. I dropped
it on top of stuff on the floor.
Dispatcher: Okay. You left it upstairs. Are you . . .
Russell: Why do you keep asking me that?
Dispatcher: Because I want my officers to know
where that weapon is before they come
in that residence.
Russell: I’m at the front door. I don’t have the
gun.
Dispatcher: You’re at the front door.
Russell: Yes, I crawled to the front door.
Dispatcher: Okay, is the door unlocked?
1228 UNITED STATES v. RUSSELL
Russell: Yes, I opened the door for them.
Dispatcher: Okay, is the door open.
Russell: Please don’t make me suffer.
Dispatcher: The front door is open or it’s unlocked?
Russell: This door is open.
Dispatcher: Okay.
At that point, the owner of the house and Russell’s mother
arrived. The dispatcher overheard the exchange in which Rus-
sell told them that he shot himself in the foot.
After the initial communications, the officers sent to the
scene were informed by the dispatcher that Russell said he
was home alone and was moving a gun from the bedroom to
a closet when it went off. The officers were informed by the
dispatcher that Russell had crawled to the front door and
opened it for the officers.
When the first officer arrived, she waited outside the
entrance to the cul-de-sac for four minutes until the other
units reached the scene. As she pulled up, she saw Russell
hopping out to a car parked in the driveway with a towel
wrapped around his leg, accompanied by the two women.
Russell entered the back seat of the car, and one woman
entered the front of the vehicle. The officer ordered the driver
out of the car. The women were not questioned. Two other
officers arrived at the scene and saw the first officer talking
with Russell.
At that point there was no objective evidence that any vic-
tim was in the house in need of immediate aid. The officers
made no attempt at the scene to ascertain whether there was
anyone in the house. The women were not questioned, nor did
UNITED STATES v. RUSSELL 1229
the officers question Russell. The objective evidence at hand,
from Russell’s firsthand accounts, was that he had shot him-
self accidentally in the foot in an upstairs bedroom and had
dropped the firearm. No evidence at the scene contradicted
this report.
However, rather than taking steps to ascertain the situation,
the arriving officers immediately proceeded to enter and
search the house with guns drawn. They methodically
searched the house and found the firearm in an upstairs bed-
room on the floor of a closet. Upon finding the gun, the offi-
cers remained in the room until other officers arrived. Then,
the officers continued their general search. As one of the offi-
cers testified at the suppression hearing:
Q. At some point Sargeant Dillon found a firearm?
A. Yes, sir.
Q. Correct? Then you continued to search after
that, right?
A. Yes, sir.
Q. Right? And you were searching for other
ammunition and firearms?
A. Yes, sir.
Q. Okay. And during the course of that, you found
a pill bottle in a drawer?
A. Yes, sir.
Q. And you seized that?
A. Yes, sir.
1230 UNITED STATES v. RUSSELL
Q. Correct? And you also claimed that you — that
you saw several narcotics smoking pipes
located in an open drawer in plain view; is that
correct?
A. Yes, sir.
Q. But in fact they were not, they were inside some
kind of a case; isn’t that correct?
A. A paper bag sir.
The officers verified at the suppression hearing that they
continued to search after they had determined that nobody
else was present in the house and that none of the searching
officers had made any inquiries prior to the search to ascertain
whether they were additional victims in the house.
Under these circumstances, the emergency exception did
not justify a warrantless search.1 The objective evidence indi-
cated that the victim was already outside; he had informed the
dispatcher that he was alone in the house; the women who
arrived later were already outside; there was no objective evi-
dence on the scene that there was a victim in the house in
need of immediate assistance; no inquiries were made to
determine whether there was another injured person in the
house; the search continued after the officers ascertained that
there was no one else in the house; and the search was not
confined to looking for persons in need of medical attention,
but included searching drawers and paper bags. One of the
1
The majority claims that the district court made a factual finding of
emergency, to which we must defer. However, the record does not support
this assertion. The district court did not even use the word “emergency”
in its findings, much less make a specific finding of emergency. In any
case, as the majority notes, the determination of the circumstances under
which a warrantless search may be authorized is a mixed question of fact
and law that we review de novo. United States v. Bynum, 362 F.3d 574,
578-79 (9th Cir. 2004); Martinez, 406 F.3d at 1163.
UNITED STATES v. RUSSELL 1231
officers who searched and discovered the firearm remained in
the room securing the gun until “someone relieved me inside
the house to maintain control over the crime scene inside the
house.”
The totality of the circumstances indicates that the officers
were investigating the cause of the emergency in conducting
the search—a law enforcement function, and not rendering
assistance to a person in need of immediate aid—a commu-
nity caretaking function. They were treating the house as a
crime scene. Their suspicions of criminal activity may well
have been aroused by Russell’s initial use of a false name, but
suspicions of criminal activity do not justify employment of
the emergency community caretaker exception to conduct a
warrantless search. The Supreme Court has made it quite clear
that there is no “crime scene” exception to the warrant
requirement. Mincey, 437 U.S. at 395.
The government properly concedes that we have never
extended the community caretaker doctrine this far. In every
case in which we have applied the emergency doctrine, offi-
cers had objective evidence that immediate emergency aid
was required and took further steps to verify that there was,
in fact, an emergency situation present in the premises. The
best case that the government offers is Martinez. However, in
Martinez, the officers heard shouting inside a house in which
a victim had exited and had reason to believe that a man
inside the house might be injured. The officers also ques-
tioned persons at the scene before entering. The officer who
entered the house did not conduct a general search, but only
observed a weapon in plain view on the couch as he was
removing the occupant. 406 F.3d at 1165. In Martinez, we
also recognized the especially volatile and dangerous nature
of domestic disputes. Id.
I recognize fully and appreciate the need for law enforce-
ment to make split second decisions when confronted with
emergency situations. We must be deferential to the judg-
1232 UNITED STATES v. RUSSELL
ments of officers who are responding to potentially dangerous
situations. However, we deprive the emergency doctrine of its
vitality when we condone generalized warrantless searches in
vacant houses when the person in need of immediate aid has
already departed. Searching drawers and paper bags after the
officers have ascertained that there is no one in need of aid
cannot be considered rendering emergency medical assis-
tance. After medical aid has been given, and the emergency
quelled, officers are certainly justified in investigating the
cause of the emergency; but this is a law enforcement func-
tion subject to the usual rules pertaining to law enforcement
searches and seizures. For these reasons, in my view, under
the circumstances presented by this case, the government has
not overcome the presumption that a warrantless search of a
private residence is unreasonable under the Fourth Amend-
ment.