                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                      STATE V. MARSHALL


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                               STATE OF NEBRASKA, APPELLANT,
                                               V.

                                DANIEL S. MARSHALL, APPELLEE.


                              Filed May 26, 2015.    No. A-15-019.


       Appeal from the District Court for Lancaster County: STEPHANIE F. STACY, Judge.
Affirmed.
        Joe Kelly, Lancaster County Attorney, Patrick F. Condon, and Michael S. Boal, Senior
Certified Law Student, for appellant.
       Nancy K. Peterson for appellee.



       RIEDMANN, Judge.
                                       INTRODUCTION
        Pursuant to Neb. Rev. Stat. § 29-824 (Reissue 2008), the State appeals an order granting a
motion to suppress evidence discovered during a warrantless search of a house owned by Daniel
S. Marshall. Because the State failed to prove that the police officers had reasonable grounds to
believe an emergency existed and that there was an immediate need for their assistance for the
protection of life or property, the district court’s order is affirmed.
                                         BACKGROUND
       Marshall was charged in the district court for Lancaster County with possession of a
firearm by a prohibited person after law enforcement located a firearm in his residence during a
welfare check. He moved to suppress all evidence gathered by law enforcement as a result of
entering and searching the residence because it violated his right to be free of unreasonable



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searches and seizures as guaranteed by the U.S. and Nebraska Constitutions. A suppression hearing
was held, during which the following evidence was adduced.
        On December 22, 2013, the animal control division for the City of Lincoln received a
complaint of an aggressive pit pull running loose in a Lincoln neighborhood. Animal control
officer Cheryl Bomberger responded to the call at approximately 12:30 in the afternoon.
Bomberger located the animal but was unable to capture it without assistance.
        Bomberger was aware from previous contacts that the dog belonged to the residents of a
house located at 18th and H Streets, so she approached the home to try to make contact with the
owners. She noticed that the storm door of the residence did not latch and that the outer wooden
door, which was immediately adjacent to the storm door, was ajar approximately 8 to 10 inches.
The evidence showed that the outer wooden door led into a covered porch area which was
approximately 4 feet deep and 10 feet wide. At the rear of the covered porch was a second wooden
door which led directly into the living area of the residence. Bomberger testified that she did not
see the second wooden door initially, but later discovered that it was ajar approximately 8 to 10
inches as well. She knocked on the outer wooden door, but received no response.
        Bomberger contacted Lincoln Police due to the fact that the door to the residence was ajar
and she knew, based on previous contacts, that a “grandmother” lived in the home. She testified
that it was normal practice for animal control to call police to request a welfare check under
circumstances such as these, where a door to a residence is ajar and they have reason to believe
that the owners of an animal are elderly or handicapped.
        Lincoln police officers Michael Pratt and Stacy Pratt were dispatched to the scene. While
en route, Officer Stacy Pratt radioed to Officer Michael Pratt that she had previously been to this
residence to assist animal control with an aggressive dog complaint and had made contact with a
resident by the name of Daniel Marshall, who was issued a citation regarding the dog. When
Officer Michael Pratt arrived on scene, Bomberger advised him of the current situation with the
dog and expressed her concern about the door being open and the older woman that lived there.
        Officer Michael Pratt testified that Bomberger advised him that she recognized the dog
from prior contacts and knew that it belonged to the residents at a particular house at 18th and H
Streets. Bomberger further advised him that she had tried to make contact with the residents by
knocking on the door and by telephone, but was unable to reach anyone. According to Officer
Michael Pratt, Bomberger indicated that an elderly woman with “some health problems” lived
there, and Bomberger was concerned that maybe the woman was incapacitated or in need of
assistance; however, Bomberger did not indicate to Officer Michael Pratt the nature of the
woman’s health problems, how she became aware of this information, or when she had last seen
this woman.
        Officer Stacy Pratt arrived on scene shortly thereafter. She testified that Officer Michael
Pratt was already involved in a conversation with Bomberger when she arrived, so she only heard
part of their conversation. According to Officer Stacy Pratt, Bomberger stated that she was aware
of an elderly woman that lived at the residence that “might have some health issues.” However,
during the suppression hearing, Bomberger acknowledged that she had not seen the woman at the
residence since 2010, and did not have any information regarding the woman’s health issues on
the date in question, nor any specific knowledge about her physical condition.



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         Both officers testified that the dog was very aggressive, and was growling, barking, and
showing its teeth as it charged toward them, causing Officer Michael Pratt to draw his firearm for
protection. A second animal control officer arrived shortly thereafter, and they were able to confine
the dog.
         Once the dog was safely confined, Officers Michael and Stacy Pratt approached the house
and noticed that the interior wooden door was slightly ajar. They testified that there was a storm
door with a glass front that led into a small vestibule porch area. Through the glass storm door,
they could see the interior wooden door that appeared to lead into the house. Neither officer
remembered seeing the first wooden door immediately adjacent to the storm door, and testified
that it must have either been wide open or not attached that day. Officer Michael Pratt testified that
the interior wooden door was ajar approximately 4 to 5 inches, which caused him concern. Officer
Stacy Pratt estimated that the door was 5 to 10 inches ajar. The officers knocked on the door and
shouted their presence several times, but received no response. They decided to make entry into
the house to check if there was an elderly woman in need of assistance.
         Upon entering the residence, the officers made a cursory search of the upper level and
basement areas looking for anyone that might be in need of assistance. While walking through one
of the upstairs bedrooms, Officer Michael Pratt noticed a semi-automatic handgun sitting on a
closet shelf at eye level, as well as a magazine with ammunition. He testified that the closet did
not have a door and he did not have to move any items on the closet shelf in order to see the gun
or the ammunition. Officer Stacy Pratt testified that she too could see directly into the closet, but
she could not recall whether the closet door was open or there simply was no door. At that point,
neither officer touched or moved the gun, but instead continued their search of the house.
         After searching the remainder of the house and finding no one, both officers returned to
the bedroom where they had observed the gun. Officer Michael Pratt picked up the gun, copied
down its make, model, and serial number, and then placed it back on the closet shelf. When asked
why he did that, he responded, “I don’t know; just curious.” The officers then secured the doors
and exited the residence.
         Immediately upon leaving, Officer Michael Pratt called to check the criminal history of the
defendant, Daniel Marshall, which revealed that he was a convicted felon. Officer Michael Pratt
testified that he decided to check Marshall’s criminal history because he suspected there was a
possibility that he may be a convicted felon based on the information he had received earlier that
day from Officer Stacy Pratt. Officer Michael Pratt then checked the status of the gun and
discovered that it had been reported stolen. However, he acknowledged that at the time he observed
the gun, he had no reason to believe that it was stolen or that anyone residing in the house was a
convicted felon.
         Law enforcement obtained and executed a search warrant later that day, during which the
gun and ammunition were seized from the residence, as well as four pieces of mail to prove
Marshall’s occupancy. Officer Michael Pratt acknowledged that when drafting the search warrant
affidavit, he did not allege that the elderly woman was a resident of the house or that she had health
concerns.
         Following the suppression hearing, the district court issued a written order granting
Marshall’s motion to suppress. It found the State failed to prove that the officers had reasonable
grounds to believe an emergency existed, and that the search of the closet shelf while inside the


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home far exceeded the reasonable scope of a welfare check for an elderly resident in distress. The
State timely appeals from the district court’s decision.
                                    ASSIGNMENTS OF ERROR
       The State assigns that the district court erred in finding that the officers’ entry into the
residence was not justified by the emergency doctrine and in granting Marshall’s motion to
suppress.
                                     STANDARD OF REVIEW
         An appellate court will uphold the trial court’s ruling on a motion to suppress unless the
trial court’s finding of fact are clearly erroneous. State v. Eberly, 271 Neb. 893, 716 N.W.2d 671
(2006). In making this determination, the appellate court does not reweigh the evidence or resolve
conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and considers
the trial court observed the witnesses testifying in regard to such motions. Id. In cases involving
exigent circumstances, the trial court’s conclusion as to whether the facts, when viewed from the
standpoint of an objectively reasonable police officer, establish the existence of probable cause or
the presence of exigent circumstances, must be reviewed de novo. See id.
                                             ANALYSIS
        The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska
Constitution guarantee against unreasonable searches and seizures. State v. Rodriguez, 288 Neb.
878, 852 N.W.2d 705 (2014). A police officer who has obtained neither an arrest warrant nor a
search warrant cannot make a nonconsensual and warrantless entry into a suspect’s home in the
absence of exigent circumstances. State v. Eberly, supra, citing State v. Plant, 236 Neb. 317, 461
N.W.2d 253 (1990); State v. Resler, 209 Neb. 249, 306 N.W.2d 918 (1981). Exigency
determinations are generally fact intensive, but several commonly recognized categories include:
        (1) ‘hot pursuit’ of a fleeing felon; (2) threatened destruction of evidence inside a residence
        before a warrant can be obtained; (3) a risk that the suspect may escape from the residence
        undetected; or (4) a threat, posed by a suspect, to the lives or safety of the public, the police
        officers, or to [an occupant].
State v. Eberly, supra.
        At issue in this appeal is the fourth category, which is also called the “emergency doctrine.”
One rationale for the emergency doctrine is “to allow police officers [to] enter a dwelling without
a warrant to render emergency aid and assistance to a person whom they reasonably believe to be
in distress and in need of that assistance.” State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990)
(internal citations and quotations omitted). See also, Mincey v. Arizona, 437 U.S. 385, 98 S.Ct.
2408, 57 L.Ed.2d 290 (1978) (stating that police may make warrantless entries on premises where
the police “reasonably believe that a person within is in need of immediate aid.”).
        The Nebraska Supreme Court has summarized the elements of the emergency doctrine as
follows: (1) the police must have reasonable grounds to believe an emergency exists 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; and (3) there must be some
reasonable basis, approximating probable cause, to associate the emergency with the area or place



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to be searched. State v. Eberly, supra. However, we no longer consider whether a search is
primarily motivated by an intent to arrest and seize evidence, as the U.S. Supreme Court has since
clarified that an officer’s subjective motivation is irrelevant in determining whether that officer’s
actions violate the Fourth Amendment. See id., citing Brigham City, Utah v. Stuart, 547 U.S. 398,
126 S.Ct. 1943, 164 L.Ed.2d 650 (2006).
        When applying the emergency doctrine, the Nebraska Supreme Court has stated that two
principles must be kept in mind:
        (1) Since the doctrine is an exception to the ordinary Fourth Amendment requirement of a
        warrant for entry into a home, the burden of proof is on the state to show that the
        warrantless entry fell within the exception. . . . (2) An objective standard as to the
        reasonableness of the officer’s belief must be applied.
        . . . [I]n justifying the particular intrusion the police officer must be able to point to specific
        and articulable facts which, taken together with rational inferences from those facts,
        reasonably warrant that intrusion. . . . And in making that assessment it is imperative that
        the facts be judged against an objective standard: would the facts available to the officer at
        the moment of the seizure or the search “warrant a man of reasonable caution in the belief”
        that the action taken was appropriate?
State v. Eberly, supra, citing State v. Resler, 209 Neb. at 255, 306 N.W.2d at 922-23.
        The Nebraska Supreme Court has condoned warrantless searches of a residence on
occasion. See e.g. State v. Eberly, 271 Neb. 893, 716 N.W.2d 671 (2006); State v. Plant, 236 Neb.
317, 461 N.W.2d 253 (1990); and State v. Resler, 209 Neb. 249, 306 N.W.2d 918 (1981)(first
acknowledging the emergency doctrine for warrantless entry in Nebraska).
        In State v. Eberly, supra, the Supreme Court affirmed an order denying the defendant’s
motion to suppress on the basis that the emergency doctrine justified the warrantless entry. In that
case, officers had been dispatched to a house with information that a neighbor reported a burglary
at the residence. Neighbors saw a man in Eberly’s back yard, heard a loud bang, and saw 2 men
run away carrying a white bag. Upon arrival at the home, the officers could see that the back door
had been forced open and no one responded to their announcement as police officers. The police
entered the home to ensure that no victims or suspects remained inside. While in the house, they
discovered a marijuana-growing operation. After securing a search warrant, they seized the
evidence. The defendant filed a motion to suppress which the district court denied.
        On appeal, the Nebraska Supreme Court upheld the district court’s determination that the
officers had a reasonable objective basis to believe that someone inside the house may need their
assistance because the “bang” described by the neighbor could have been a gun shot or evidence
of an assault. To wait for a search warrant could have led to further deterioration if a person inside
was wounded.
        In State v. Plant, supra, police officers entered the Plant’s home without a warrant after
gaining knowledge that three young children were unaccounted for and had been left unattended
for several hours. As a result of their search, the police officers located the missing children inside
who later made statements incriminating Plant in a pending child abuse case. Plant sought to have
these statements suppressed as fruit of the poisonous tree. The district court refused to suppress
the evidence and the Nebraska Supreme Court affirmed.



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         In reaching its decision, the Supreme Court noted that before entering the Plant’s home,
the police had information that three young children were unaccounted for and had been left
unattended for several hours. They were aware that Plant had given misinformation to police
officers regarding his and the children’s whereabouts. The officers were also familiar with a report
to police that one of the children had suffered continual abuse by Plant and another child was in
critical condition because of his injuries. The court concluded that all of this evidence was gathered
from reliable sources and provided reasonable grounds to believe that an emergency existed and
there was an immediate need for police assistance for the protection of the three children.
         Unlike Eberly and Plant, at the time the officers entered Marshall’s house, they had no
reasonable basis to believe that someone was in the house, much less that the person inside was in
distress. The only information they had was that an elderly woman who had, or may have, health
problems lived there. A dog was at large and the inside door was ajar. While Bomberger surmised
that the dog may have knocked over the woman before it escaped from the house, there were no
specific articulable facts to support that conjecture.
         The State relies upon U.S. v. Quezada, 448 F.3d 1005 (8th Cir. 2006), in support of its
argument that the police officers had reasonable grounds to believe an emergency existed. In
Quezada, a deputy sheriff arrived at an apartment to serve the resident with a child protection
order. Although the door to the apartment was closed, the latch was not engaged, causing the door
to open slightly when the deputy knocked on it. Through the gap in the door, the deputy could see
that the lights were on in the apartment and he heard a television playing. He shouted into the
apartment several times to announce his presence, but received no response. After radioing these
details to the dispatcher, the deputy drew his weapon and entered the apartment. The defendant
was found inside the apartment in possession of a firearm, and further investigation revealed that
he was a convicted felon. He was subsequently charged with being a felon in possession of a
firearm, and moved to suppress evidence of the gun on grounds that the deputy entered the
apartment unlawfully.
         The Eighth Circuit held that the deputy was justified in entering the apartment because he
was acting within his role as a community caretaker, and therefore, his decision to enter the
apartment could not be judged by the same standard as if he were entering the apartment to search
for criminal activity. Id. at 1007. Instead, the court explained, “[a] police officer may enter a
residence without a warrant as a community caretaker where the officer has a reasonable belief
that an emergency exists requiring his or her attention.” Id., citing Mincey v. Arizona, 437 U.S.
385, 392-93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The court further explained that the
“reasonable belief” standard, which is used when determining whether an officer may enter a
residence as a community caretaker, “is a less exacting standard than probable cause.” Id., citing
Maryland v. Buie, 494 U.S. 325, 336-37, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).
         Based on this framework, the court held that the deputy’s entry into the apartment “violated
the fourth amendment only if no reasonable officer could have believed that an emergency was at
hand.” Id. at 1008. It noted that if the apartment had appeared quiet and dark, it might have been
reasonable to assume the tenant had simply not closed the door securely before leaving; but
because the lights and television were on, the circumstances suggested that someone was home.
Id. Additionally, because the deputy shouted into the apartment several times and did not receive
a response, “a reasonable officer in the deputy’s position could conclude that someone was inside


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but was unable to respond for some reason.” Id. Thus, the court concluded that the deputy’s
decision to enter the apartment was reasonable and did not violate the Fourth Amendment.
         The facts before us in this case differ from those of Quezada. In Quezada, the court
specifically noted that because the lights and television were on, it was reasonable to believe
someone was home. Here, there was no such evidence. Moreover, the Eighth Circuit has adopted
a “community caretaker exception” for warrantless searches of residences, whereas the Nebraska
Supreme Court has recognized such an exception only in the context of automobile searches. State
v. Blakewell, 273 Neb. 372, 730 N.W.2d 335 (2007). See also Megan Pauline Marinos, Comment,
Breaking and Entering or Community Caretaking? A Solution to the Overbroad Expansion of the
Inventory Search, 22 Geo. Mason U. Civil Rights L.J. 249, 261 (2012)(discussing differences
between the community caretaker exception and the emergency exception). In adopting the
community caretaker exception for warrantless searches of automobiles, our Supreme Court has
emphasized its narrow application. Id. Therefore, Quezada is not only distinquishable on its facts,
but its analysis is inapplicable.
         Applying the above principles, it was the State’s burden to prove the police officers had
reasonable grounds to believe that a person was inside the home who was in distress and in
immediate need of their assistance for the protection of life or property. As described by the district
court, the evidence was scant and largely surmised. Therefore, I agree with the decision of the
district court that the police officers’ entry into the residence was not justified by the emergency
doctrine and violated Marshall’s Fourth Amendment rights. I therefore affirm the decision granting
Marshall’s motion to suppress.
                                          CONCLUSION
      For the reasons explained above, the trial court’s order is affirmed and the matter is
remanded for further proceedings.
                                                                                 AFFIRMED.




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