D.Conn.: Shots fired call is not per se exigency; totality standard must apply

A shots fired call is not carte blanche exigency–the totality of circumstances must still be examined. Here, the court finds no exigency for the warrantless entry or protective sweep and that the exclusionary rule should be applied. The costs aren’t substantial compared to the deterrent effect. United States v. Calhoun, 2017 U.S. Dist. LEXIS 21708 (D.Conn. Feb. 16, 2017), and reconsideration denied, 2017 U.S. Dist. LEXIS 40210 (D. Conn. March 21, 2017):

In the same vein, the reports of shots fired in the general area did not indicate an ongoing threat of violence at 49 Ridgewood Place. Contrary to the government’s suggestion, the Fourth Amendment does not create a per se exception to the warrant requirement any time there is a report of shots fired nearby, even if the police believe they have located the person responsible for firing those shots; in every case, the totality of the circumstances must be examined. Cf. Williams v. Cty. of Alameda, 26 F. Supp. 3d 925, 938-39 (N.D. Cal. 2014) (holding that although reports of domestic violence should be taken seriously, they do not per se constitute exigency); Harris v. O’Hare, 770 F.3d 224, 236 (2d Cir. 2014) (The “mere suspicion or probable cause for belief of the presence of a firearm does not, on its own, create urgency.”) (emphasis in original). In cases holding that a report of shots fired provided sufficient exigency to justify a warrantless entry, the officers had an objectively reasonable belief that victims would be found at that location because that was where the shots had been fired. See United States v. Ashburn, 2014 U.S. Dist. LEXIS 62656, 2014 WL 1800409, at *5 (E.D.N.Y. May 6, 2014) (collecting cases where emergency aid doctrine justified entry to search for shooting victims where there was evidence that shots had been fired, such as the presence of bullet holes and casings at that location); United States v. Gambino-Zavala, 539 F.3d 1221, 1225 (10th Cir. 2008) (collecting cases holding same, where there were bullet holes, casings, or reports of shots fired at that location). In the present case, by contrast, the evidence available to the officers on location at the time of the breach did not provide any indication that shots had been fired at the residence. Instead, all of the available evidence suggested that Calhoun fired shots at a different location and then fled to his residence. The shots fired were reported before Calhoun drove away from the CVS, see (Gov’t Ex. 2); there were no bullet holes visible on the residence or in the car; and after roughly fifteen minutes of searching, the officers had not found any casings in the area around the residence.

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The emergency aid doctrine does not require “ironclad proof of a ‘likely serious, life-threatening’ injury,” Fisher, 558 U.S. at 49 (quoting Brigham City, 547 U.S. at 406), nor is a failure to immediately call for medics fatal to an emergency aid claim, see id.; nevertheless, the officers’ objectively reasonable belief must be based on something more than speculation and the government has not shown that to be the case here. See Simmons, 661 F.3d at 158; see also Williams v. Cty. of Alameda, 26 F. Supp. 3d 925, 938 (N.D. Cal. 2014) (“Defendants must point to ‘specific and articulable’ facts which, taken together with rational inferences, support the warrantless intrusion.”) (quoting United States v. Howard, 828 F.2d 552, 555 (9th Cir. 1987)).

In sum, I find that the officers’ warrantless entry into 49 Ridgewood was not justified by the emergency aid doctrine. The government has not pointed to any other reason why a warrantless entry would be permitted in this case, nor did it provide evidence that it would have been impracticable to wait for Calhoun and arrest him upon his exit from the residence or to obtain a warrant for his arrest. For the sake of completeness, however, I will also discuss the scope of the officers’ search within the residence before considering the implications of this finding for Calhoun’s suppression motion.

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The government’s evidence thus indicates that the officers’ search of the residence lasted considerably “long[er] than [was] necessary to dispel the reasonable suspicion of danger,” Buie, 494 U.S. at 335-36, and in fact amounted to wanton disregard for the limitations of a permissible protective sweep.

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I can only speculate about the likelihood that any of those scenarios would have occurred, and, as the Second Circuit observed in United States v. Stokes, 733 F.3d 438 (2d Cir. 2013), “that is precisely the problem: a finding of ‘inevitable’ discovery cannot rest on speculation about what [Calhoun] might or might not have done.” Id. at 446. Because there was nothing inevitable about what would have been discovered absent the unlawful entry, the inevitable discovery doctrine does not apply here.

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At the hearing, the government suggested that another cost of imposing the exclusionary rule in this case is that it could have the effect of causing officers to hesitate before providing aid out of concern that the emergency aid doctrine would not apply. But the emergency aid doctrine, unlike other theories of exigency, contemplates a calculation that does not take into account the possible criminal conduct of the person believed to be in need—it is aimed at the provision of medical care and harm prevention, rather than the identification of suspects and evidence. Thus, exclusion of evidence from a criminal trial should have no effect on the willingness of officers to render emergency aid.

In sum, I conclude that the deterrent effect of imposing the exclusionary rule easily outweighs its costs in this case. Accordingly, any verbal and physical evidence obtained during the warrantless search of Calhoun’s residence is suppressed.

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