                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-1738

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

JOHN E. S CHMIDT, JR.,
                                           Defendant-Appellant.


           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
          No. 2:11-cr-00153-LA-1—Lynn Adelman, Judge.



  A RGUED S EPTEMBER 14, 2012—D ECIDED N OVEMBER 6, 2012




  Before P OSNER, R OVNER, and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. In May 2011, several
Milwaukee police officers were investigating a series
of gunshots that were heard near the intersection of
South 10th Street and West Orchard Street. About an
hour into the investigation, some of the officers learned
that one person had been shot in the leg near that inter-
section and was recovering at a hospital. At around
1:00 a.m., an officer approached a backyard shared by
2                                              No. 12-1738

two duplexes on 1420 South 10th Street and noticed
bullet holes and a trail of about nine spent casings in the
area, including five casings right next to one of the du-
plexes and a casing in the yard itself. Without a warrant,
he entered the backyard and approached a corner of
the yard, where he found and seized a rifle, which be-
longed to John E. Schmidt, Jr. Schmidt was subsequently
indicted for being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After
the district court denied his motion to suppress, Schmidt
pled guilty and was sentenced to 21 months’ imprison-
ment. As permitted by his plea agreement, Schmidt
now appeals the denial of his suppression motion,
arguing that the backyard was curtilage and that any
danger had dissipated by the time of the search given
the heavy presence of officers in the neighborhood and
the passage of a few hours’ time. However, we find that
a reasonable officer could have believed that there were
other exigent circumstances, i.e., wounded victims in
the backyard in need of emergency aid, and so the
officer’s warrantless presence in the backyard was
justified even if the backyard were curtilage. And
because the scope and breech of the rifle were in plain
view once he was there, we find that the officer did not
violate the Fourth Amendment in seizing the rifle. There-
fore, we affirm Schmidt’s conviction.


                   I. BACKGROUND
  On May 30, 2011, at around 10:30 p.m., two Milwaukee
police officers responding to a call heard a series of gun-
No. 12-1738                                             3

shots in or around the intersection of South 10th Street
and West Orchard Street in Milwaukee, Wisconsin.
Over a dozen officers arrived in the neighborhood to
investigate and interview witnesses, and within an hour
some had learned that a person had been shot in the
leg near that intersection and was in the hospital. The
officers remained in the neighborhood until about 4 a.m.
  Schmidt lived near the intersection in a duplex at
1420/1422 South 10th Street, which shared a backyard
with another duplex whose address was listed as
1424/1426 South 10th Street. The 1420/1422 duplex abuts
South 10th Street, while the 1424/1426 duplex is a bit
farther back, abutting a back alley running parallel to
South 10th Street. The front and back of this two-duplex
plot were almost entirely enclosed by chain-link fences
with “No Trespassing” signs on them, along with
chain-link gates, though a small corner of the yard
was blocked by a wooden fence on the South 10th
Street side.
  At approximately 1:00 a.m., one of the investigating
officers approached the two-duplex complex from the
back alley. He noticed bullet holes in a car parked on a
concrete slab adjacent to the backyard and bullet holes
in the 1424/1426 duplex itself. He also noticed a trail
of about nine spent casings on the ground, including
five casings right next to the 1424/1426 duplex and one
casing within the yard. The chain-link gate on the
back alley side was open that night, and the officer,
without a warrant, entered the backyard and panned the
area with his flashlight. He got to the corner of the yard
4                                              No. 12-1738

that was blocked from the South 10th Street side by
the wooden fence and saw, amidst some tall grass, a
small pile of assorted objects, which included an old
bicycle, wood, a blue Tupperware lid, a garden hose,
and some trash.
  Shining his flashlight towards the corner, the officer
saw a glint of metal and approached the pile. Without
moving any objects, the officer saw the scope and breech
of a firearm, and the blue Tupperware lid covering
the stock of the firearm. He initially believed the firearm
to be a pellet gun or BB gun because a “large bore rifle
with a scope [would] just [be] out of place in the area.”
The officer then lifted the Tupperware lid, pushed some
tall grass aside, and saw that the firearm was a .308
Winchester rifle, which he seized.
  The rifle belonged to Schmidt, who was charged with
being a felon in possession of a firearm. Schmidt filed
a motion to suppress, and after conducting an eviden-
tiary hearing, the magistrate judge found that while
the backyard was curtilage, Schmidt did not have a
reasonable expectation of privacy there. He recom-
mended to the district court denial of the motion, and
that court adopted that recommendation and denied the
motion. Schmidt pled guilty pursuant to a conditional
plea agreement which reserved his right to challenge
the denial of the suppression motion on appeal, and he
was sentenced to 21 months’ imprisonment. Schmidt
now appeals the denial of his suppression motion.
No. 12-1738                                                5

                      II. ANALYSIS
    The parties agree that after United States v. Jones, ___
U.S. ___, 132 S. Ct. 945 (2012), which postdated the
district court’s denial of Schmidt’s suppression motion,
the government’s warrantless trespass onto curtilage
is presumptively a Fourth Amendment violation even
if there is no reasonable expectation of privacy there. See
id. at 952. So the parties have vigorously disputed
whether the shared backyard is considered curtilage, see
id. at 953, and, if it is not curtilage, whether Schmidt had
a reasonable expectation of privacy in that area. See
United States v. Villegas, 495 F.3d 761, 767 (7th Cir. 2007).
We need not resolve these questions, however, because
even if the shared backyard is entitled to the same
Fourth Amendment protections applicable to a home,
the officer’s warrantless entry into the backyard was
justified by exigent circumstances, and his seizure of the
rifle was justified by the fact that its scope and breech
were in plain view.


  A. Exigent Circumstances Justified the Officer’s War-
     rantless Backyard Entry
  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. See United States v. Huddleston,
6                                              No. 12-1738

593 F.3d 596, 600 (7th Cir. 2010). Exigent circum-
stances exist, for example, when officers must “ ‘render
emergency assistance to an injured [person] or to 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. See Huddleston, 593 F.3d at 600.
  At the time of the search, gunshots had recently been
heard in the neighborhood. Bullet holes were in a car
that was adjacent to the backyard, bullet holes were
in the 1424/1426 duplex itself, and there was a trail
of about nine spent casings on the ground nearby, in-
cluding five right next to the 1424/1426 duplex and one
in the yard. These circumstances, taken together, made
it reasonable for an officer to believe, at the time of
the search, that people in the backyard area may have
recently been shot and in need of immediate aid.
  Schmidt principally argues that by the time of the
search, two hours had already passed since the shots
were fired and over 20 officers had blanketed the
block. But the prime exigency in this case was the
potential for wounded victims, not necessarily the
threat of further shooting. If a victim had been shot in
the yard, as a reasonable officer could have suspected,
that victim would not have become any less wounded
after two hours had passed; to the contrary, he would
No. 12-1738                                                  7

need immediate aid. It would not have made sense
for an officer to wait for a warrant when a shooting
victim could have been dying in the yard, and the
officer also did not need to know that someone had
actually been shot in order to go into the yard. See
United States v. Brown, 64 F.3d 1083, 1086 (7th Cir. 1995)
(it is unreasonable to think “that the police must stand
outside [the] apartment, despite legitimate concerns
about the welfare of the occupant, unless they can hear
screams”). Schmidt emphasizes that the officer also
intended to look for evidence, but we do not look at
the subjective motivations of an officer when examining
the objective basis for a finding of exigent circum-
stances. See Brigham City v. Stuart, 547 U.S. 398,
404 (2006) (“An action is ‘reasonable’ under the Fourth
Amendment, regardless of the individual officer’s state
of mind, ‘as long as the circumstances, viewed objec-
tively, justify [the] action.’ ” (citation omitted)). We there-
fore conclude that the officer’s warrantless entry into
the backyard was justified by exigent circumstances.


    B. The Scope and Breech of the Rifle Were in Plain
       View
  Schmidt argues that even if exigent circumstances
existed, the officer’s combing through the small pile of



  Though other officers had discovered at this point that a
person near the intersection had been shot in the leg, the
officer testified that he was unaware of this fact when he
searched the backyard.
8                                              No. 12-1738

assorted objects was not justified by the need to look for
wounded victims, since a wounded victim could not
possibly have been among the small pile of objects or
underneath a Tupperware lid. See Mincey v. Arizona,
437 U.S. 385, 393 (1978) (search “must be strictly circum-
scribed by the exigencies which justify its initia-
tion” (citation and quotation marks omitted)); United
States v. Arch, 7 F.3d 1300, 1304 (7th Cir. 1993) (after
showing exigent circumstances, the government “must
also demonstrate that ‘[t]he ensuing search . . . was ap-
propriately limited to the circumstances that justified
it’ ” (quoting United States v. Salava, 978 F.2d 320, 325
(7th Cir. 1992))); see, e.g., id. (analyzing whether search
for wounded victims was “appropriately limited to
those places where an injured person might have
been found”).
  However, we find that the officer’s seizure of the rifle
is justified for another reason: the fact that the scope
and breech of the rifle were in plain view. A warrantless
seizure of an object is justified if: “(1) the officer was
lawfully present in the place from where he viewed the
item, (2) the item was in plain view, and (3) its incrim-
inating nature was ‘immediately apparent.’ ” United
States v. Cellitti, 387 F.3d 618, 623 (7th Cir. 2004). “For
the incriminating nature to be immediately apparent,
the officer must have probable cause to believe that
the item is contraband or otherwise linked to criminal
activity.” Id. at 624.
  As discussed earlier, the officer was lawfully present
in the backyard due to objective indications of exigent
No. 12-1738                                                9

circumstances. See Arizona v. Hicks, 480 U.S. 321, 326
(1987) (officer may seize evidence in plain view even if
justification for his warrantless presence is exigent cir-
cumstances (citing Coolidge v. New Hampshire, 403 U.S.
443, 465 (1971))). The scope and breech of a firearm
were in plain view. And based on the recent shots
that were heard, the bullet holes, and the trail of spent
casings leading into the backyard, the officer had
probable cause to believe that the firearm to which the
scope and breech belonged was linked to the gunshots
that had just occurred in the area. See Cellitti, 387 F.3d
at 624 (“officers may have probable cause to seize
an ordinarily innocuous object when the context of an
investigation casts that item in a suspicious light”); see,
e.g., United States v. Van Dreel, 155 F.3d 902, 905 (7th
Cir. 1998) (“[a]lthough guns and ammunition may be
lawfully possessed, in the context of [the crimes of]
bank robbery and hunting out of season, these items
assume an incriminating nature”). Schmidt appears to
argue that the officer did not know it was a gun until
he moved the Tupperware lid and the grass, but that
is not what the officer said, and Schmidt did not chal-
lenge the officer’s credibility. The officer testified that
the scope and breech of a firearm were visible before
any objects were moved, and so the fact that a gun
was there was apparent before the officer moved
anything around. Compare, e.g., Gentry v. Sevier, 597
F.3d 838, 849 (7th Cir. 2010) (incriminating evidence in
a pile of items in a wheelbarrow was not plainly visible
without moving the items on top of the pile).
  To be sure, the officer testified that he initially thought
that the gun was a pellet gun or BB gun, but that was
10                                             No. 12-1738

only based on his passing incredulity that a large bore
rifle would actually be sitting out there in the yard. He
did not say that the scope and breech that were in plain
view could not belong to some dangerous weapon. Pellet
guns and BB guns look remarkably like real firearms.
We do not think that when something that looks like a
gun is in plain view after gunshots had been heard
nearby, an officer lacks probable cause to believe that
the gun is linked to the gunshots simply because it
might end up being a pellet gun or BB gun.
  For instance, in United States v. Willis, 37 F.3d 313
(7th Cir. 1994), we found that an officer was justified
in seizing a gun in a school zone even though it was
partially hidden and the officer was only “able to
discern [a] metallic glint [that] came from the exposed
barrel of a gun.” Id. at 316. The exposed barrel could
have been of a pellet gun or BB gun, but that mere possi-
bility did not vitiate probable cause. Where in Willis
the plainly visible barrel of a firearm was sufficient to
justify seizure of the gun, here, the plainly visible scope
and breech of a firearm were sufficient to justify seizure
of the rifle. This case is not like United States v. Brown,
79 F.3d 1499 (7th Cir. 1996), where the only thing that
was in plain view was a “shiny, chrome object.” Id. at
1509. There, we found that the incriminating nature of
that object was not so apparent that the officer was
justified in seizing what turned out to be a gun. “Thinking
a metal object might be a weapon does not meet
the standard for plain view,” id., but seeing the
actual scope and breech of a firearm does. Because the
gunshots had been heard nearby, seizure of the rifle was
No. 12-1738                                       11

justified even if only its scope and breech were in
plain view.


                III. CONCLUSION
  For the above-stated reasons, we A FFIRM Schmidt’s
conviction.




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