D.N.M.: Both protective sweep and emergency aid justifications fail for lack of objective facts somebody else was there

Where there are no articulable facts somebody else might be present in the house, the protective sweep doctrine can’t be relied on. Likewise with the emergency aid doctrine. Here there was a 911 hang up call, but the critical fact is that somebody was in need isn’t present. United States v. Benavidez, 2016 U.S. Dist. LEXIS 175373 (D.N.M. Dec. 19, 2016):

Emphasizing that officers were responding to a 911 call, the Government argues that “[o]fficers had no way to know who else may be inside the defendant’s apartment or who else may need help.” [Doc. 33, pp. 7-8] This argument fails for two reasons. First, an “objectively” reasonable basis to believe someone needs aid requires some articulable basis to suspect that such a person exists. It is always the case that officers do not know whether anyone is inside who may need help until they search a residence, but the Fourth Amendment requires some evidence supporting a belief that those circumstances might be in play. Martinez, 643 F.3d at 1299-1300 (“The sanctity of the home is too important to be violated by the mere possibility that someone inside is in need of aid—such a possibility is ever-present. It is for this reason that exceptions to the Fourth Amendment’s warrant requirement are subject only to a few specifically established and well-delineated exceptions.” (Internal quotation marks and citations omitted)). Here, given the facts known to the officers, there was no reason to believe that anyone else besides J.L. and her children were inside or in need of emergency aid. Second, while, as recognized in Najar, a 911 call often does signal an emergency, Najar, 451 F.3d at 719, and the 911 call here objectively did create a belief of an emergency of a woman being threatened with a knife, the objective belief of an emergency was dispelled in this case prior to the warrantless search. Following Najar, our Tenth Circuit clarified that the Najar Court “expressly did not hold that a response to a 911 call will always justify a warrantless entry upon the arrival of law enforcement.” Martinez, 643 F.3d at 1297 (internal quotation marks and citation omitted). Instead, a 911 call must be considered in the totality of the circumstances. See Najar, 451 F.3d at 720. The totality of the circumstances in this case demonstrate that officers did not have reason to believe someone else in the home needed aid at the time they searched the apartment.