                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 15-1742
                          ___________________________

                               United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                 Cody Michael Smith

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                    for the District of South Dakota - Sioux Falls
                                    ____________

                             Submitted: October 23, 2015
                                Filed: April 14, 2016
                                   ____________

Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.
                              ____________

SHEPHERD, Circuit Judge.

       After reserving the right to challenge the warrantless search of his residence,
Cody Smith pled guilty to one count of possession of a firearm by a prohibited person
in violation of 18 U.S.C. § 922(g)(9). Smith appeals the district court’s1 denial of his

      1
       The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota, adopting the report and recommendations of the
motion to suppress, arguing the physical evidence seized from his residence is fruit
of an illegal entry into his home in violation of his Fourth Amendment rights. We
have jurisdiction under 28 U.S.C. § 1291 and affirm.

                                         I.

      On April 26, 2013, the Sioux Falls Police Department received a call from
Jennifer Saarloos, a resident of Changes and Choices half-way house, regarding a
well-being check on Alexis Wallace, another resident of the half-way house.
Saarloos reported that she was concerned Wallace was being held against her will by
her ex-boyfriend, Smith, because she did not return to the half-way house as
scheduled at 5:00 p.m. The operator asked if Smith was known to have any weapons
on him, to which Saarloos replied, “I’m sure of it, I’m sure.” When asked why she
believed Smith was holding Wallace against her will, Saarloos responded that a no-
contact order existed between Smith and Wallace, that Smith was known to become
“very, very, very angry,” and that Smith was a known drug user.

       At 7:49 p.m., Officers Sandgren, Van Ravenswaay, and Lieuwen arrived at
Smith’s home in response to the call. Sandgren explained to the other officers that
he had been recently dispatched to the same location in response to a report that a
male suspect was discharging firearms outside the home. At the time the officers
reported to the scene, Sandgren believed Smith was the same individual police had
responded to previously; however, he later discovered the individual was a prior
resident and was not Smith. The officers knocked on Smith’s door at 7:52 p.m.
Smith answered the door and Sandgren asked, “Is Alexis here?” Smith responded
that Wallace was not at the home. Sandgren explained that Wallace had not returned
to the half-way house as scheduled and the officers had reason to believe she was at


Honorable John E. Simko, United States Magistrate Judge for the District of South
Dakota.

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Smith’s home. Smith refused to give consent to the police to search for Wallace in
his home and demanded the officers obtain a search warrant before he would allow
them to enter his home.

        The officers returned to their patrol car and discussed the situation. The
officers radioed in to dispatch to check for Wallace at the local jail, hospitals, detox
facilities, and similar locations. Sandgren told his fellow officers that they were
merely “guessing” whether Wallace was inside the apartment, but expressed his belief
that Smith would not allow them inside the home regardless of Wallace’s presence
based on the prior incident at the location. Dispatch contacted the officers between
7:58 and 8:00 p.m., reporting Wallace was not present at the other locations and that
Smith had outstanding, unrelated warrants for his arrest.

       Van Ravenswaay returned to his patrol car and called Saarloos at 8:03 p.m to
obtain more information. Saarloos reported that Wallace left the half-way house
around 4:25 p.m. and that Smith had been overheard yelling at Wallace on the phone
that day. Saarloos further indicated that Wallace went to Smith’s home because some
of her personal belongings were there but told Saarloos she would return by 5:00 p.m.
Saarloos also stated that other half-way house residents had tried to contact Wallace
but no one had heard from her since she left the house. Sandgren and Lieuwen
discussed Smith’s appearance while Van Ravenswaay was away on the call with
Saarloos. Sandgren commented that “it doesn’t even look like him, the same guy.”
The officers also remarked that “the whole shape of his face changed” and “he’s got
to be using meth.” When Van Ravenswaay returned, he relayed the additional
information from Saarloos, and Sandgren requested additional police to be dispatched
to the location.

       At 8:13 p.m., the officers observed Smith emerge from his home to take out
trash. The officers promptly arrested Smith on the outstanding warrants and placed
him in Sandgren’s patrol car. Smith again stated that police could not enter his home

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without a warrant. Sandgren responded, “We’re going in the house,” based on
information Wallace was in the home and that the police had an “obligation to check
to make sure she’s safe.” At 8:17 p.m., Officer Winninger arrived as backup.
Sandgren began to brief Winninger on the situation, then noticed someone look out
the back window of Smith’s home. Shortly thereafter, the officers approached the
front door, announced their presence, and entered the residence. The police called
out for Wallace, but she did not immediately respond. Wallace indicated she was in
the bedroom approximately thirty seconds later. Sandgren testified that Wallace was
not restrained when the officers located her and that Wallace told officers the only
thing that had prevented her from leaving the home was Smith.

      At the time they located Wallace in the bedroom, the officers observed an AK-
47 partially covered by a bed sheet. The officers spent approximately one hour on the
scene questioning Wallace and Smith before leaving with both of them in custody.
The officers also took possession of the AK-47 and other evidence found in the home.
While driving to the police station, Sandgren learned Smith was not the individual he
previously encountered at the same location.

       Smith was indicted for possession of a firearm by a prohibited person in
violation of 18 U.S.C. § 922(g)(9). Smith moved to suppress the evidence found in
his home. The district court denied the motion to suppress, concluding the officers
lawfully entered Smith’s home pursuant to the community caretaking exception to the
warrant requirement and that because the officers were lawfully on the premises, the
firearm was admissible under the plain view doctrine. Smith pleaded guilty to being
a felon in possession of the firearm but preserved his right to appeal the district
court’s denial of the motion to suppress. The district court sentenced Smith to 41
months imprisonment. This timely appeal followed.




                                         -4-
                                            II.

       On appeal, Smith argues the district court erred in denying his motion to
suppress. “A mixed standard of review applies to the denial of a motion to suppress
evidence.” United States v. Williams, 777 F.3d 1013, 1015 (8th Cir. 2015). We
review the district court’s findings of fact for clear error and the denial of the
suppression motion de novo. Id.; United States v. Orozco, 700 F.3d 1176, 1178 (8th
Cir. 2012).

       The Fourth Amendment provides, in relevant part, “[t]he right of the people to
be secure in their . . . houses . . . against unreasonable searches and seizures, shall not
be violated.” “At the Amendment’s ‘very core’ stands ‘the right of a man to retreat
into his own home and there be free from unreasonable government intrusion.’”
Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013) (quoting Silverman v. United States,
365 U.S. 505, 511 (1961)). While it is a basic principle of the Fourth Amendment
that warrantless searches and seizures inside a home are presumptively unreasonable,
the ultimate touchstone of the Fourth Amendment is “reasonableness,” and it follows
that the warrant requirement is subject to certain exceptions. Brigham City, Utah v.
Stuart, 547 U.S. 398, 403 (2006) (citing Flippo v. West Virginia, 528 U.S. 11, 13
(1999) (per curiam)).

       One such exception applies when police officers engage in a community
caretaking function. Cady v. Dombrowski, 413 U.S. 433, 441 (1973). The Supreme
Court has long described the “community caretaking functions” of law enforcement
as activities that are “totally divorced from the detection, investigation, or acquisition
of evidence relating to the violation of a criminal statute.” Id. This Circuit has
recognized that such a “community caretaker” classification may justify
noninvestigatory searches and seizures in certain limited situations. United States v.
Harris, 747 F.3d 1013, 1017 (8th Cir. 2014) (compiling cases that have applied the
community caretaker doctrine to noninvestigatory seizures). Community caretaking

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functions are performed by law enforcement to “help those in danger.” United States
v. Quezada, 448 F.3d 1005, 1007 (8th Cir. 2006) (citing Cady, 413 U.S. at 441). “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 (1978)). The
“reasonable belief” required under the community caretaker doctrine “is a less
exacting standard than probable cause.” Id. (citing Maryland v. Buie, 494 U.S. 325,
336-37 (1990)). A search or seizure under the community caretaking function is
reasonable if the governmental interest in law enforcement’s exercise of that function,
based on specific and articulable facts, outweighs the individual’s interest in freedom
from government intrusion. Harris, 747 F.3d at 1017.

      We first examine whether the officers had a reasonable belief that Wallace was
in danger such that their entry into Smith’s home was a justifiable exercise of their
community caretaking function. We look to the facts known to the officers at the
time they made the decision to enter Smith’s home in search of Wallace. See
Samuelson v. City of New Ulm, 455 F.3d 871, 875 (8th Cir. 2006) (holding that, in
Fourth Amendment claims, reasonableness is examined from the perspective of a
“reasonable officer on the scene, rather than with the 20/20 vision of hindsight”
(quoting Tennessee v. Garner, 471 U.S. 1, 8-9 (1985))).

       The specific, articulable facts known to the officers at the time they entered the
residence include the following facts, based on Saarloos’s calls and information from
dispatch. Wallace left the half-way house and had not returned by 5:00 p.m., the time
she indicated she would return. Saarloos stated during her first call to 911 that Smith
may be holding Wallace at his home against her will. Saarloos also provided
background information on Smith and Wallace’s previous dating relationship,
including the existence of a no-contact order between them. The officers further
learned from dispatch that other officers were unable to locate Wallace at a number
of other locations. Sandgren believed he knew Smith from the previous call to the

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same location–an incident that led him to believe Smith was armed and dangerous,
especially when coupled with Saarloos’s report that she was “sure” Smith was armed.
Sandgren later told the officers Smith’s appearance had changed significantly. After
Smith denied any contact with Wallace, Saarloos told Van Ravenswaay that Smith
had been overheard yelling at Wallace on the phone earlier that day. Further, only
Smith responded to the officer’s initial knock on the door. Wallace had not
responded to any phone calls or text messages since she left the half-way house,
which was over three hours prior to the time the officers entered Smith’s residence.
Finally, Sandgren noticed a person’s face at the back window of Smith’s home after
Smith told officers Wallace was not at his home.

       We are satisfied that the officers acted in their community caretaking function
when they entered Smith’s residence. The circumstances resemble those in Harris
and Quezada, in which officers responded to potential emergency situations to aid
members of the community. See Harris, 747 F.3d at 1018-20 (holding that
community caretaker doctrine applied when officers responded to a call that a gun
was sliding out of the pocket of a sleeping individual at a bus station); Quezada, 448
F.3d at 1007-08 (holding that community caretaker doctrine applied when officer
encountered an emergency situation while serving a child protection order). The
officers in the present case received a call from a concerned member of the
community regarding the safety of another community member. On the scene, the
officers learned further details indicating serious concern for Wallace’s safety and
establishing multiple reasons why she would be at Smith’s residence and held against
her will or in danger.

       We must next weigh the government’s interests in the officers’ entry against
Smith’s right to be free from government intrusion. Smith contends that following
his arrest, any emergency situation that the police officers may have believed existed
inside the residence was extinguished and points to Smith v. Kansas City, Missouri
Police Department, 586 F.3d 576 (8th Cir. 2009), as apposite. However, in Smith, the

                                         -7-
officers observed no suspicious activity to confirm their belief that a domestic
violence suspect was in a home with a child. 586 F.3d at 580-81. The officers in
Smith entered the residence to look for unknown, dangerous individuals as part of a
protective sweep. Id. Here, the officers did not enter Smith’s residence as a
protective sweep. As far as the officers reasonably knew at the time, Wallace could
have been incapacitated within the residence in any number of ways that would
prevent her from emerging from the residence following Smith’s arrest. Wallace’s
lack of response to any calls or messages on her cell phone since leaving the half-way
house further suggested that she was unable to respond. The fact that officers saw a
face in the window undermined Smith’s claim that he was the only person in the
home at the time and a reasonable officer on the scene could believe the person seen
in the window required their assistance. The justification for the officers’ entry arises
from their obligation to help those in danger and ensure the safety of the public. See
Quezada, 448 F.3d at 1007; Samuelson, 455 F.3d at 877. The district court found
that, as in Quezada, “a reasonable officer . . . could conclude that someone was inside
but was unable to respond for some reason.” 448 F.3d at 1008. We agree and
conclude that the officers reasonably believed an emergency situation existed that
required their immediate attention in the form of entering Smith’s residence to search
for Wallace.

       Further, we conclude the scope of the encounter was carefully tailored to
satisfy the purpose. See Harris, 747 F.3d at 1017 (maintaining that the scope of the
encounter must conform to the purpose of the initial detention). The officers entered
Smith’s residence for the purpose of locating Wallace. They first announced their
presence at the entrance of the home but received no response. Within thirty seconds,
Wallace called out and indicated she was “in the bedroom.” The officers went to the
bedroom and began speaking with Wallace there. Smith does not argue the officers
ventured beyond the bedroom once inside his home.




                                          -8-
      The firearm at issue in this case was lying on the bed in the bedroom where
Wallace was located. It was only partially covered by a bed sheet. The plain view
doctrine therefore applies. See Quezada, 448 F.3d at 1008 (holding that a shotgun
protruding from beneath a man lying on the ground was admissible under the plain
view doctrine). The Supreme Court has long held that “under certain circumstances
the police may seize evidence in plain view without a warrant,” including situations
“[w]here the initial intrusion that brings the police within plain view of such
[evidence] is supported . . . by one of the recognized exceptions to the warrant
requirement.” Arizona v. Hicks, 480 U.S. 321, 326 (1987) (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 465 (1971) (plurality opinion)). Because the officers had
a lawful basis for entering Smith’s apartment under their function as community
caretakers, the firearm laying on the bed in the room in which Wallace was found is
admissible under the plain view doctrine.

                                        III.

      Accordingly, we affirm the district court’s denial of Smith’s motion to
suppress.
                    ______________________________




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