                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-2478

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                               v.

L UIS G. D ELGADO,
                                            Defendant-Appellant.


           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
          No. 2:11-cr-16-JPS-1—J.P. Stadtmueller, Judge.



  A RGUED N OVEMBER 2, 2012—D ECIDED N OVEMBER 29, 2012




 Before M ANION, W ILLIAMS, and H AMILTON, Circuit Judges.
  W ILLIAMS, Circuit Judge. On December 29, 2010, a Mil-
waukee police officer responding to a report of gunshots
near the 1900 block of South 12th Street saw a Hispanic
male running towards a building at 1830 South 13th
Street. A witness then told the officer that her cousin
had been shot by a black male and that her cousin was
hiding in an apartment in that building. After police
officers approached the apartment and knocked, Defendant
2                                            No. 12-2478

Luis G. Delgado, who was the Hispanic male seen
earlier, and the shooting victim, who had a visible graze
wound on his wrist, came out of the apartment. The
officers detained Delgado in the squad car and then,
without a warrant, entered and searched his apart-
ment finding various firearms. Delgado was indicted
for being a felon in possession of a firearm and for pos-
sessing an unregistered firearm. Delgado moved to sup-
press. Both the magistrate judge and the district court
agreed that the warrantless search was not justified
by exigent circumstances, but the district court found
that the search was a valid protective sweep and
denied Delgado’s motion. Pursuant to the conditional
plea agreement, Delgado pled guilty and was sentenced
to a year and a day of imprisonment.
  Delgado now appeals the denial of his suppression
motion. The government concedes that the warrantless
search was not a valid protective sweep, but argues that
exigent circumstances existed because a reasonable
officer could have believed that the unaccounted-for
shooter was still hiding in the same apartment from
which the shooting victim and Delgado had emerged.
However, we agree with the magistrate judge and the
district court and reject that argument. Absent any
verbal or non-verbal indication from the victim, the
witness, or Delgado that anyone else was in the apart-
ment or that the victim or Delgado had been subjected
to violence inside the apartment, the mere fact that
the shooter was generally at large was not enough
for a reasonable officer to believe that the shooter was
specifically in the apartment. Therefore, we reverse
No. 12-2478                                             3

the denial of Delgado’s suppression motion, vacate the
judgment of conviction, and remand with instructions
to grant Delgado’s suppression motion and for addi-
tional proceedings consistent with this decision.


                  I. BACKGROUND
  On December 29, 2010, Milwaukee police officers re-
sponded to a report of gunshots in an alley near the
1900 block of South 12th Street. When they arrived, one
officer noticed a Hispanic male (later identified as
Delgado) running from the alley towards a building at
1830 South 13th Street clutching his left waistband.
While following him, the officer was stopped by a
witness who said that her cousin, Adrian Aviles, told
her that a black male had shot him in the alley and
that Aviles was hiding in Delgado’s apartment at
1830A South 13th Street. The officers went to the apart-
ment and knocked on the door. After getting no
response, they prepared to force their way into the apart-
ment when Aviles, who had a visible graze wound on
his wrist, came out of the apartment with Delgado, who
was unarmed. Neither Aviles nor Delgado indicated—
in words, demeanor, or otherwise—that the shooter was
in the same apartment from which they exited. There
was no indication that anyone else was in the apart-
ment or that Aviles or Delgado had been subjected
to violence inside the apartment. After recognizing
Delgado as the Hispanic male spotted earlier, the
officers handcuffed him and placed him in the back of
a squad car.
4                                              No. 12-2478

   The officers went back to the building, entered
Delgado’s apartment without a warrant, and searched
it. Inside Delgado’s bedroom closet, the officers
found four antique rifles and two shotguns, including
one sawed-off shotgun. During questioning, Delgado
said he was the sole occupant of the apartment and
had been previously convicted for armed robbery.
  Delgado was charged with being a felon in possession
of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
and for possessing an unregistered firearm in violation
of 26 U.S.C. §§ 5861(d) and 5871. Delgado moved to
suppress the firearms, the parties stipulated to the
facts, and no evidentiary hearing was held. The
magistrate judge recommended granting the motion,
finding that no exigent circumstances existed to justify
the warrantless search, and that the search was not a
valid protective sweep. The government objected to the
recommendation but did not ask the district court
for permission to supplement the record or for an evi-
dentiary hearing. The district court, relying on the stipu-
lated facts, agreed that no exigent circumstances
existed, but denied the motion because it found that
the search constituted a protective sweep. Delgado pled
guilty pursuant to a conditional plea agreement which
permitted him to challenge the denial of the suppres-
sion motion on appeal. He was sentenced to one year
and a day of imprisonment and has appealed the
denial of his suppression motion.
No. 12-2478                                                   5

                       II. ANALYSIS
  Though the government argued before both the magis-
trate judge and the district court that the warrantless
search was justified as a protective sweep, it concedes
on appeal that it was not. The government now argues
exclusively that the search was justified by exigent cir-
cumstances.
  “Warrantless searches of areas entitled to Fourth Amend-
ment protection are presumptively unreasonable, but
the government may overcome this presumption by
demonstrating that, from the perspective of the officer at
the scene, a reasonable officer could believe that exigent
circumstances existed and that there was no time to
obtain a warrant.” United States v. Schmidt, ___ F.3d ___,
2012 WL 5392623, at *2 (7th Cir. Nov. 6, 2012) (citation
omitted). Exigent circumstances exist, for example,
when officers must “ ‘protect a [person] from imminent
injury.’ ” Kentucky v. King, ___ U.S. ___, 131 S. Ct. 1849, 1856
(2011) (quoting Brigham City v. Stuart, 547 U.S. 398, 403
(2006)). “In reviewing the district court’s denial of a
motion to suppress, we review factual findings for clear
error and issues of law de novo, and whether exigent
circumstances existed is a mixed question of fact and
law that is reviewed de novo.” Schmidt, 2012 WL 5392623,
at *2 (citation omitted). Because the facts here were stipu-
lated, our review in this case is essentially de novo.
  The government argues that a reasonable officer
could have believed that the shooter chased Aviles into
Delgado’s apartment and hid there after the officers
knocked on the door, while Aviles and Delgado left
6                                               No. 12-2478

the apartment. It suggests that the officers needed to
search the apartment to find the shooter, who posed an
immediate threat to the officers and others. But the gov-
ernment points to no signs of any further shooting, strug-
gle, or presence of other persons in that apartment
that were observed by the officers when they arrived.
When Aviles and Delgado came out of the apartment
in response to the officers’ knocking, neither of them
gave any verbal or non-verbal indication to the officers
that the dangerous shooter was in the apartment. It
is unreasonable to believe that, faced with such life-threat-
ening danger, both the shooting victim and Delgado
would leave the apartment with nary a word or any
expression whatsoever indicating that the shooter was
just over their shoulder or that they were within seconds
of being killed. Cf., e.g., United States v. Arch, 7 F.3d
1300, 1304-05 (7th Cir. 1993) (defendant’s “irrational,
agitated, and bizarre” behavior, coupled with other
suspicious signs of violence, sufficient to create rea-
sonable belief of exigent circumstances). Furthermore,
the witness who approached the officer said nothing
about the shooter chasing Aviles into Delgado’s apart-
ment. It is also unreasonable to think that Aviles would
tell his cousin that he had been shot and was hiding
in Delgado’s apartment, but fail to mention that the
shooter was after him. The mere fact that the shooter
was generally at large is not enough for a reasonable
officer to specifically believe that he was in the apart-
ment. Cf. United States v. Ellis, 499 F.3d 686, 691 (7th Cir.
2007) (“[I]f we affirm the district court’s decision in
this case, we have effectively created a situation in
No. 12-2478                                            7

which the police have no reason to obtain a warrant
when they want to search a home with any type of connec-
tions to drugs.”).
  For the government’s theory to be reasonable under
these circumstances, one would have to believe that the
shooter (lethally armed and bent on killing Aviles),
Delgado (potentially lethally armed and bent on pro-
tecting Aviles), and Aviles rushed into the sole-occupant
apartment and were poised for a fatal showdown, but
that the officers happened to knock on Delgado’s door
at the precise climactic moment before anyone could
pull a trigger or throw a punch, causing the parties to
immediately suspend all hostilities while the shooter
scrambled into a hiding position and Aviles and
Delgado left acting as if nothing had happened. The
presumption of unconstitutionality that attaches to
warrantless searches requires the government to point
to something that would lead a reasonable officer to
think that this improbable scenario actually transpired,
but the government simply has not done so.
  The government argues that Aviles’s and Delgado’s
silence when they came out of the apartment does not
mean that the shooter was not in the apartment, because
victims of violence sometimes choose to remain silent
to prevent an investigation into their own criminal
activity or to prevent their wounded foe from receiving
aid. But this argument erroneously suggests that the
defendant carries the burden of proving a lack of exigent
circumstances, when it is actually incumbent upon the
government to point to some affirmative sign of exigency.
8                                               No. 12-2478

Silence in this context cannot be that sign, as it could
have easily meant any number of things having nothing
to do with exigent circumstances. Cf., e.g., Ellis, 499 F.3d
at 691 (finding no exigent circumstances because
general movement noises in response to officer’s
knocking do not automatically mean that evidence is
about to be destroyed, when they could simply signal
someone getting up to answer the door). The govern-
ment notes that in other cases, police officers have
validly entered homes without a warrant upon suspicion
of domestic violence even when the victim remains
silent upon answering the door, but in those cases,
silence or an indication that everything was fine was
not in and of itself an affirmative indication of exigent
circumstances. The victim’s silence simply failed to
vitiate other affirmative indications that something dan-
gerous was happening inside the home. See Hanson v.
Dane Cty., 608 F.3d 335, 338 (7th Cir. 2010) (abused wife’s
request for the police to leave did not take away from
the fact that she had earlier placed a 911 call and
abruptly hung up); United States v. Jenkins, 329 F.3d
579, 581-82 (7th Cir. 2003) (man’s non-responsiveness
irrelevant given 911 call and certain noises from within
home). Absent such other affirmative indications here,
Aviles’s and Delgado’s silence adds nothing to the
exigent circumstances equation.
  The government’s failure to carry its burden compels
us to find that the officers violated Delgado’s Fourth
Amendment rights when conducting a warrantless
search of his apartment. So we reverse the denial of
Delgado’s suppression motion, vacate his conviction,
No. 12-2478                                               9

and remand for additional proceedings consistent with
this decision. In remanding, we also instruct the district
court to grant Delgado’s suppression motion. After the
magistrate judge found a lack of exigent circumstances
based on a set of stipulated facts, the government could
have asked the district court to supplement the record
and could have requested an evidentiary hearing. See
28 U.S.C. § 636(b)(1); Hynes v. Squillace, 143 F.3d 653,
656 (7th Cir. 1998); Goffman v. Gross, 59 F.3d 668, 671 (7th
Cir. 1995). It did not. Though the government has not
suggested that it is now entitled to an evidentiary
hearing at this late stage, our instructions to grant the
suppression motion do not include providing an eviden-
tiary hearing. It is too late for that.


                   III. CONCLUSION
  For the above-stated reasons, we R EVERSE the denial
of Delgado’s suppression motion, V ACATE his judg-
ment of conviction, and R EMAND with instructions to
grant his suppression motion and for additional pro-
ceedings consistent with this decision.




                          11-29-12
