D.Ida.: Officers responding to 911 hang up call but “nothing … signaled danger”

Officers responded to a 911 hang up call, and they succeeded in entering. “Here, the officers saw nothing at the residence that signaled danger.” “The smell of marijuana meant that someone was smoking pot, not that someone needed to be rescued.” The emergency justification failed, and the government carried the burden. United States v. Shook, 2013 U.S. Dist. LEXIS 76111 (D. Ida. May 29, 2013):

… There is nothing inherently suspicious about the quite common event of a dog barking in response to a doorbell and nobody answering the door. And there is nothing necessarily contradictory about Kolton’s explanation that he went outside for a smoke and was locked out by others inside. As discussed above, the emergency exception is “narrow” and the officers must have “an objectively reasonable basis for concluding that there is an immediate need to protect others or themselves from serious harm.” Sims, 706 F.3d at 960. Even given the heightened awareness the officers are entitled to have in answering a 911 hang-up call, this encounter gave rise to no basis for believing that an occupant in the home was in immediate need of protection from serious harm. At most, it gave rise to a solid suspicion that someone was smoking pot inside, not that someone needed to be rescued.

Because the officers uncovered nothing of an emergency nature after arriving at the house, their only possible justification for entering the home was the 911 hang-up call. Yet no case cited by the Government applies the emergency exception in such a situation, and the Court’s own research uncovers no such case. Instead, the cases involving 911 hang-up calls where the emergency exception was found to exist include some additional factor that triggered the exception. For example, in U.S. v. Najar 451 F.3d 710 (10th Cir. 2006), a dispatcher returned a 911 hang-up call only to find that someone would pick up her call and then hang up without answering. The court held that the emergency exception applied because “[a] reasonable person could well be concerned that someone was trying to prevent communication with safety officials, not merely avoid it.” Id. at 720. In Johnson v. City of Memphis, 617 F.3d 864 (6th Cir. 2010), the dispatcher received a hang-up 911 call and tried to return the call but got no answer. The police responded to the home where the call came from, and found an open door. The court approved the officers’ entry into the home, finding that the emergency exception applied in that case. Id. at 869-70. …

The Court is not holding that a 911 hang-up call will never be sufficient to trigger the emergency exception; it is merely holding that in this case, the Government has not borne its “heavy burden” of presenting “particularized evidence” to justify the application of the emergency exception. Reid, 226 F.3d at 1028.