                                   NOT PRECEDENTIAL
      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 11-1013
                   _____________

          UNITED STATES OF AMERICA,
                             Appellant

                          v.

                 MICHAEL WOLFE,
                  _______________

    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
              (D.C. No. 10-cr-00616-001)
        District Judge: Hon. Harvey Bartle, III
                   _______________

      Submitted Under Third Circuit LAR 34.1(a)
                 November 9, 2011

Before: SCIRICA, SMITH, and JORDAN, Circuit Judges.

             (Filed: November 18, 2011)
                  _______________

             OPINION OF THE COURT
                 _______________
JORDAN, Circuit Judge.

       The government appeals from an order of the United States District Court for the

Eastern District of Pennsylvania granting Michael Wolfe‟s motion to suppress. This case

arises from a search of Wolfe‟s home by Philadelphia police officers, which resulted in

his indictment for federal drug and firearms offenses. Arguing that the warrantless search

violated the Fourth Amendment, Wolfe successfully moved to suppress the evidence the

officers took and the statements that he made to them after his arrest. For the following

reasons, we will affirm.

I.     Background

       A.     Facts

       On the evening of May 3, 2010, Carol Brown dialed 9-1-1 from her home at 912

South Orianna Street in Philadelphia and reported that her son, Wolfe, had been shot in

the hand while he was out on the street. A police radio call then went out reporting a

“male shot on the highway.” Two officers responded within a few minutes and knocked

on the door to Brown‟s home. She admitted them and told them that her son had been

shot. The officers found Wolfe sitting in a chair in the living room bleeding profusely

from his hand. They questioned him about what happened and whether he knew who had

shot him, and Wolfe responded that he had been shot while he was outside. Brown, her

daughter, and a neighbor were present in the home while the officers questioned Wolfe.

The officers asked Brown whether there were any other individuals in the house, and she



                                             2
told them that there were none. Within a few minutes, the officers assisted Wolfe, who

appeared to be fainting, out of the home so that he could receive medical treatment.

       As the officers were bringing Wolfe out the front door, a supervising officer,

Sergeant Evans, arrived at the scene. Evans observed that Wolfe appeared to be in a

great deal of pain, and he authorized the officers to transport Wolfe to a local hospital.

He did not, however, communicate with Wolfe, Brown, or the officers about what had

happened or whether there was cause for concern that someone still in the home was

injured or might pose a threat. After Wolfe was taken to the hospital, Evans entered the

home, accompanied by later arriving officers.

       As he did so, he observed blood, including a trail of blood that led up the stairs to

the second floor and ended at the top of the stairway.1 Evans and another officer

followed the blood trail to the second floor and entered a rear bedroom (later revealed to

be Wolfe‟s), where they saw a clear plastic bag on the bed. Because he immediately

believed the bag contained narcotics, Evans secured the property and called the police

department to request a search warrant. When the search warrant arrived, the officers

entered the bedroom and began a full search, finding crack cocaine, marijuana, and a

firearm.


       1
         Although Evans testified that he could see blood on the carpet inside the home
prior to his entry, it is unclear whether he observed the blood through a window, or, if the
door was open after the responding officers transported Wolfe out of the house. (See
App. at 73 (“I could see a lot of blood on the carpeting. … Seeing that blood I went into
the property to clear the property.”).) Evans testified that the blood trail continued to the
bedroom, but the District Court found that the blood stopped at the top of the stairs. The
government does not appeal that factual finding, and we accept it as true.

                                              3
       After Wolfe was released from the hospital, police took him to a police station for

questioning. They informed him of Evans‟s search and arrested him. Wolfe later made

incriminating statements regarding his ownership of the drugs and the gun, and his intent

to sell the crack cocaine.

       B.     Procedural Background

       Wolfe was charged with possession with intent to distribute cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), possession with intent to distribute crack

cocaine near public housing, in violation of 21 U.S.C. § 860, possession of marijuana, in

violation of 21 U.S.C. § 844(a), and possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Wolfe was also charged as a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

       Wolfe successfully moved to suppress the drugs and firearm discovered in his

bedroom and the incriminating statements that he made to the police after his arrest. The

District Court determined that the first responding officers faced an emergency situation

which justified their entry into Brown‟s home. However, the Court also concluded that,

after the responding officers escorted Wolfe out of the home,

       there was no immediate or compelling need to insure the safety of the
       officers or anyone else by entering the second floor beyond the top of the
       stairs. ... [T]here was no indication, let alone probable cause for a
       reasonable person to believe, that additional victims existed or that any
       assailant was present inside [the home].

(App. at 8.) The government filed a timely notice of appeal.




                                             4
II.    Discussion2

       We must determine whether Sergeant Evans violated Wolfe‟s Fourth Amendment

rights by searching the second floor of his residence without a warrant. That requires

first asking whether Evans‟s entry into Wolfe‟s residence was lawful, a matter as to

which the government bears the burden of proof.3 See Welsh v. Wisconsin, 466 U.S. 740,

750 (1984) (“[T]he burden is on the government to demonstrate exigent circumstances

that overcome the presumption of unreasonableness that attaches to all warrantless home

entries.”). The government failed to carry that burden, and, on the facts found by the

District Court, we are persuaded that suppression was appropriate.

       “It is a „basic principle of Fourth Amendment law‟ that searches and seizures

inside a home without a warrant are presumptively unreasonable.” Payton v. New York,

445 U.S. 573, 586 (1980) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 477

(1971)). However, the Supreme Court has recognized several exceptions to the warrant

requirement. One of those exceptions is that law enforcement officers may enter and

search a home under exigent circumstances. Michigan v. Fisher, 130 S. Ct. 546, 548

       2
         We review a District Court‟s ruling on a motion to suppress for clear error as to
the underlying factual findings, and we exercise “plenary review of [a] District Court‟s
application of the law to those facts.” United States v. Perez, 280 F.3d 318, 336 (3d Cir.
2002). We have appellate jurisdiction pursuant to 18 U.S.C. § 3731. The District Court
had jurisdiction pursuant to 18 U.S.C. § 3231.
       3
        The District Court did not expressly decide whether Evans‟s initial entry into the
home was lawful. Rather, the court granted the motion to suppress based on its
conclusion that the search of the second floor was unconstitutional. However, because
we may affirm on any ground supported by the record, we begin our analysis by
examining whether Evans‟s initial entry into the home was lawful. Johnson v. Orr, 776
F.2d 75, 83 n.7 (3d Cir. 1985).

                                             5
(2009). Exigent circumstances have been found, for example, in situations where

emergency aid is required, see Brigham City v. Stuart, 547 U.S. 398 (2006), where

officers are in “hot pursuit” of a fleeing suspect, see Warden, Md. Penitentiary v.

Hayden, 387 U.S. 294 (1967), and where there is an imminent risk that evidence will be

destroyed, see Ker v. California, 374 U.S. 23 (1963).

       Of particular note here, “law enforcement officers may enter a home without a

warrant to render emergency assistance to an injured occupant or to protect an occupant

from imminent injury.” Brigham City, 547 U.S. at 403. However, for the warrantless

search to be constitutional, there must be “probable cause and such other circumstances

[as] would cause a reasonable person to believe that the „exigencies of the situation made

that course imperative.‟” United States v. Moskow, 588 F.2d 882, 892 (3d Cir. 1978)

(quoting McDonald v. United States, 335 U.S. 451, 456 (1948)). In other words, Evans

must have held “„an objectively reasonable basis for believing‟ ... that „a person within

[the house was] in need of immediate aid.‟” Fisher, 130 S. Ct. at 548 (quoting Brigham

City, 547 U.S. at 406; Mincey v. Arizona, 437 U.S. 385, 392 (1978)); see Good v.

Dauphin Cnty. Soc. Servs. for Children and Youth, 891 F.2d 1087, 1094 (3d Cir. 1989)

(“[G]iven the rationale for this very limited exception, the state actors making the search

must have reason to believe that life or limb is in immediate jeopardy and that the

intrusion is reasonably necessary to alleviate the threat.”). “The presence of exigent

circumstances is a finding of fact, which we review for clear error.” United States v.

Coles, 437 F.3d 361, 366 (3d Cir. 2006).



                                             6
       The government argues that Evans‟s search was justified under the “exigent

circumstances” exception because he reasonably believed that additional victims or

threats existed inside Brown‟s home. Specifically, the government contends that Evans‟s

search was “not only reasonable, but manifestly appropriate and necessary,” because he

observed “a gunshot victim on the first floor of the house, blood throughout the rooms on

the first floor, and a trail of blood leading to the top of the stairs to the second floor,” and

that he made those observations “moments after a nearby shootout.” (Appellant‟s

Opening Br. at 13-14.) The difficulty with that argument is that it ignores the evidence of

record and facts found by the District Court. The government had to prove that Evans

had an “objectively reasonable basis” for his belief that additional victims or threats

existed in Brown‟s home. The only basis the government asserts is the exigency created

by the shooting that wounded Wolfe. But the District Court found as a matter of fact that

there was no exigency in the home by the time Evans arrived, and, on this record, we

cannot say that finding is clearly erroneous.

       The record reveals that the following information was available to Evans when he

arrived at 912 South Orianna Street: (1) a dispatch report that a “male [was] shot on the

highway,” (App. at 52); (2) his observation that two officers were escorting Wolfe, who

was bleeding, out of the house; and (3) his observation – somehow made from outside –

that there was blood on the carpet in the house. Importantly, however, Evans arrived at

the scene after two other officers had already been in the home and addressed the

exigency, and none of the evidence available to Evans when he arrived suggested that

there was another victim or threat in the home. First, the fact that the dispatch reported a

                                                7
shooting on the highway does not, on its own, support a reasoned belief that the unknown

shooter, or another victim, was inside Wolfe‟s home. Indeed, while the government

portrays the events as a rapidly unfolding and chaotic scene, the testimony shows that the

scene was in keeping with the only report available to the police: there was one victim;

he was shot on the highway; he returned to his residence, where police officers attended

to him; and he was leaving his residence for the hospital with those officers. On these

facts, and they are the facts that bind our review, Evans‟s observation of blood in the

house did not create an “objectively reasonable” basis for a belief that the blood belonged

to anyone other than Wolfe. There is nothing in the record suggesting that anyone other

than Wolfe was wounded or had come into the house that Brown shared with Wolfe. To

the extent an emergency existed when the two responding officers first arrived at 912

South Orianna Street, it ceased when they safely transported Wolfe out of the house and

to the hospital.

       This last point bears strong emphasis. We should not be understood as holding

that police officers cannot address ambiguous and evolving circumstances as their well-

informed professional judgment dictates. In this case, however, Evans began his search

after the two responding officers had already resolved the only exigency there was cause

to believe existed. It is true that “[o]fficers do not need ironclad proof of a likely serious,

life-threatening injury to invoke the emergency aid exception,” Fisher, 130 S. Ct. at 549

(internal quotation marks omitted), but here, after hearing the evidence, the District Court

determined that Evans had no indication that additional victims or threats were inside the

home after Wolfe‟s departure. Though the government disagrees with that interpretation

                                               8
of the evidence, the finding is sufficiently supported to withstand review for clear error.4

(App. at 8.)

       The government relies heavily on Mincey v. Arizona, 437 U.S. 385 (1978), to

support its position that the search was lawful under the exigent circumstances exception,

but its reliance is misplaced. In Mincey, shots were fired inside an apartment during an

undercover drug operation, and an officer was killed. Mincey, 437 U.S. at 387. After the

shooting, officers quickly searched the apartment for additional victims and discovered

several wounded occupants. Id. at 388. Subsequently, police conducted an extensive,

warrantless, four-day search of the entire residence. Id. at 389. The Supreme Court held

that although the initial search was constitutional under the emergency aid exception, the

subsequent four-day search of the house was unlawful. Id. at 392-93. The Court

explained that,

       a warrantless search must be „strictly circumscribed by the exigencies
       which justify its initiation,‟ … and it simply cannot be contended that this
       search was justified by any emergency threatening life or limb. All the



       4
          The government asserts that, even if Evans had been informed that no other
victims were present, “he would not simply accept that information, but would act to
verify it.” (Appellant‟s Reply Br. at 4; see also App. at 99.) In other words, the
government seems to suggest that an officer‟s perceived need to “clear” the premises
(i.e., conduct a room-to-room search of the entire house to ensure that no other victims or
threats are present) is enough to satisfy the demands of the Fourth Amendment. On these
facts, the government is mistaken. Although a police officer who arrives at the scene of
an ongoing emergency may search a residence to ensure that there are no additional
victims or threats, he must have an “objectively reasonable basis” for doing so. See
Fisher, 130 S. Ct. at 549 (quoting Brigham City, 547 U.S. at 406) (noting that the test “is
not what [the officer] believed, but whether there was an objectively reasonable basis for
believing that medical assistance was needed, or persons were in danger.”) (internal
quotation marks omitted). That basis was lacking here.
                                              9
       persons in Mincey‟s apartment had been located before the investigating
       homicide officers arrived there and began their search.

Id. at 393 (quoting Terry v. Ohio, 392 U.S. 1, 26 (1968)).

       Mincey does not support the government‟s actions in this case because, unlike

Mincey, in which the officers knew that the crime causing the exigency occurred inside

the home, the only information the police had here was that the crime that caused the

exigency occurred outside the home and that the single victim had retreated inside. On

the facts found by the District Court, there was no foundation for inferring that the

perpetrators were inside the residence or that there were other victims there.5

       Because the government failed to satisfy its burden of proving that Evans had an

objectively reasonable basis for his belief that other victims or threats were present in

Wolfe‟s residence, the search he conducted ran afoul of the Fourth Amendment.6

IV.    Conclusion

       For the foregoing reasons, we will affirm the District Court‟s suppression order.


       5
         Other cases the parties cite in their briefs are also distinguishable from this one
on the same grounds. See, e.g., Fisher, 130 S. Ct. at 547 (concluding that exigent
circumstances existed where officers responded to report that man was “going crazy” at
residence, “found a household in considerable chaos,” and observed individual acting
violently through window); Brigham City, 547 U.S. at 406 (finding that exigency existed
where officers responded to complaint at residence, heard altercation occurring inside
residence, and observed violent acts through window); Hayden, 387 U.S. at 298-99
(finding exigent circumstances where officers received report that robber recently fled
house).
       6
         The government has conceded that if Evans‟s search of 912 South Orianna Street
was unconstitutional, Wolfe‟s subsequent statements at the police station are the fruit of
the poisonous tree, and therefore inadmissible. We therefore need not address whether
the District Court erred in granting Wolfe‟s motion to suppress those statements.
                                             10
