                                       No. 120,031

            IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                   STATE OF KANSAS,
                                       Appellee,

                                            v.

                                   KOBY ROSS FISHER,
                                      Appellant.


                             SYLLABUS BY THE COURT


1.
       Under the Fourth Amendment to the United States Constitution and § 15 of the
Kansas Constitution Bill of Rights, a warrantless entry into a private dwelling by law
enforcement officers is considered unreasonable and invalid unless it falls within a
recognized exception to the warrant requirement.


2.
       The Fourth Amendment does not bar police officers from making warrantless
entries and searches when they reasonably believe that a person within is in need of
immediate aid. As a result, 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.


3.
       The emergency aid exception is a limited exception permitting a warrantless
search when: (1) law enforcement officers enter the premises with an objectively
reasonable basis to believe someone inside is seriously injured or imminently threatened
with serious injury; and (2) the manner and scope of any ensuing search once inside the


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premises is reasonable. The emergency aid exception limits officers to do no more than is
reasonably necessary to ascertain whether someone is in need of assistance and to
provide that assistance.


4.
        An officer's action is reasonable under the emergency aid exception when the
circumstances, viewed objectively, justify the officer's action. An officer's subjective
motivation is irrelevant.


5.
        Officers do not need ironclad proof of a likely serious, life-threatening injury to
invoke the emergency aid exception and may continue an emergency investigation until
assured there is no one inside in need of assistance—particularly when the officer
encounters circumstances that continue to raise suspicions.


        Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed November 8,
2019. Affirmed.


        James M. Latta and Heather Cessna, of Kansas Appellate Defender Office, for appellant.


        Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before POWELL, P.J., PIERRON and ATCHESON, JJ.


        POWELL, J.: Koby Ross Fisher appeals the district court's denial of his motion to
suppress the admission of marijuana found when law enforcement searched his house
after receiving a 911 call that someone in the house had been shot. After a hearing, the
district court denied Fisher's motion and ultimately found Fisher guilty following a bench
trial on stipulated facts. Before us, Fisher argues the emergency aid exception does not


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apply because the officers did not ask the two women who were standing outside the
house, including the one who made the 911 call, any clarifying questions. We disagree
and affirm.


                        FACTUAL AND PROCEDURAL BACKGROUND


       Officer Brian Johnson was dispatched to a house based on a 911 call. The female
caller, who identified herself as Teresa, reported that someone had been shot at that
address. When Johnson arrived, he saw two women arguing with a man on the street in
front of the house. The man ran away from the officers. While other officers chased after
the man, Johnson approached the house. Johnson did not see anyone injured outside and
stopped to ask the women if either were hurt. Neither was injured. Johnson later learned
one of the women, named Teresa, was the 911 caller. Johnson and another officer entered
the house to search for anyone injured inside. The officers checked upstairs and found
two locked bedroom doors. They then checked the basement and found an unhurt Fisher,
as well as marijuana leaves and plants in plain view.


       After finding marijuana but no one injured, the officers exited the house and
guarded the front and rear doors while other officers sought a search warrant. After
obtaining the search warrant, the officers reentered the house to collect the evidence.
They found several items of drug paraphernalia, 930.07 grams of marijuana, a .45 caliber
handgun, and $1,500 cash. The State charged Fisher with possession of marijuana with
the intent to distribute, unlawful acts with proceeds derived from violation of drug laws,
and possession of paraphernalia to use or distribute.


       Fisher moved to suppress the evidence, arguing that the evidence resulted from the
officers' illegal search of the house. At the hearing, Fisher argued the officers did not
comply with the emergency aid exception's requirements because they had failed to ask
the women standing outside the house any clarifying questions before entering the house.


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The State argued that the officers' entry and search of the house was protected under the
emergency aid exception to the warrant requirement.


       The district court denied Fisher's motion to suppress, finding that "[t]he sole issue
[was] whether the officers were lawfully present in the residence." The district court
found the officers were responding to a shooting and had no time to investigate if the
women were involved in the shooting or to assess their credibility because "the officers
had a duty to act and to act fast." The district court ultimately concluded that clearing the
house to find if someone was hurt or dying was not unreasonable under the
circumstances.


       As part of a plea agreement with the State in a separate case, Fisher agreed to a
bench trial on stipulated facts if his motion to suppress was denied, with the
understanding that he was preserving the issue of suppression for appeal. After finding
Fisher guilty based on the stipulated facts, the district court sentenced Fisher to a
controlling prison term of 137 months but granted a dispositional departure to probation
for 36 months.


       Fisher timely appeals.


      DID THE DISTRICT COURT ERR BY DENYING FISHER'S MOTION TO SUPPRESS?


       Fisher argues the district court erred when it denied his motion to suppress,
claiming that the officers lacked a lawful justification to enter the house because they
failed to ask the women standing outside any clarifying questions or whether they were
injured. The State counters that the emergency aid exception applies because, upon
arrival at the house, the officers had an objectively reasonable basis to believe someone
was seriously injured inside. Because Fisher concedes that the seized drugs were in plain
view of the officers once they entered into the house, the question of whether the district


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court should have suppressed the evidence turns on whether the officers' entry into the
house was constitutionally permissible under the emergency aid exception.


Standard of Review


       Our standard of review for a motion to suppress is bifurcated.


       "The appellate court reviews the district court's factual findings to determine whether
       they are supported by substantial competent evidence. But the court's ultimate legal
       conclusion is reviewed using a de novo standard. The appellate court does not reweigh
       the evidence or assess the credibility of witnesses. When the facts supporting the district
       court's decision on a motion to suppress are not disputed, the ultimate question of
       whether to suppress is a question of law over which the appellate court exercises
       unlimited review. [Citations omitted.]" State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966
       (2018).


The State bears the burden to prove the challenged evidence's admissibility. State v.
Guein, 309 Kan. 1245, 1252, 444 P.3d 340 (2019).


Analysis


       Under the Fourth Amendment to the United States Constitution and § 15 of the
Kansas Constitution Bill of Rights, "a warrantless entry into a private dwelling by law
enforcement officers is considered unreasonable and invalid unless it falls within a
recognized exception to the warrant requirement." State v. Neighbors, 299 Kan. 234, 239,
328 P.3d 1081 (2014); see Brigham City v. Stuart, 547 U.S. 398, 403-04, 126 S. Ct. 1943,
164 L. Ed. 2d 650 (2006). "[T]he Fourth Amendment does not bar police officers from
making warrantless entries and searches when they reasonably believe that a person
within is in need of immediate aid." Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct.
2408, 57 L. Ed. 2d 290 (1978). As a result, "law enforcement officers may enter a home


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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.


       Kansas recognizes several exceptions to the warrant requirement, including the
emergency aid exception. Neighbors, 299 Kan. at 239. The State has the burden to prove
"that a warrantless entry and the ensuing search and seizure were lawful." 299 Kan. at
240.


       In 2014, the Kansas Supreme Court modified its emergency aid exception test to
conform with more recent United States Supreme Court decisions:


       "[T]he emergency aid exception [is] a limited exception permitting a warrantless search
       when: (1) law enforcement officers enter the premises with an objectively reasonable
       basis to believe someone inside is seriously injured or imminently threatened with serious
       injury; and (2) the manner and scope of any ensuing search once inside the premises is
       reasonable." 299 Kan. at 249.


       An officer's action is reasonable under the emergency aid exception when the
circumstances, viewed objectively, justify the officer's action. "An officer's subjective
motivation is irrelevant." Brigham City, 547 U.S. at 404; see United States v. Najar, 451
F.3d 710, 718-19 (10th Cir. 2006) ("We evaluate whether the officers were confronted
with reasonable grounds to believe there was an immediate need 'guided by the realities
of the situation presented by the record' from the viewpoint of 'prudent, cautious, and
trained officers.'"). The emergency aid exception limits officers to "'do no more than is
reasonably necessary to ascertain whether someone is in need of assistance and to
provide that assistance.'" Neighbors, 299 Kan. at 251 (quoting 3 LaFave, Search and
Seizure § 6.6[a], p. 622 & n.65).


       Fisher does not challenge the second prong of the Neighbors test: whether law
enforcement acted reasonably once inside the house. Instead, it is the first prong of the

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Neighbors test that is at issue: whether law enforcement had an objectively reasonable
basis to believe someone inside was seriously injured. See 299 Kan. at 249. "Officers do
not need ironclad proof of 'a likely serious, life-threatening' injury to invoke the
emergency aid exception." Michigan v. Fisher, 558 U.S. 45, 49, 130 S. Ct. 546, 175 L.
Ed. 2d 410 (2009). Chief Justice (then-Judge) Burger's oft-quoted opinion in Wayne v.
United States, 318 F.2d 205, 212 (D.C. Cir. 1963), explains well the duty first responders
have to act quickly when someone may need medical aid:


       "The need to protect or preserve life or avoid serious injury is justification for what
       would be otherwise illegal absent an exigency or emergency. Fires or dead bodies are
       reported to police by cranks where no fires or bodies are to be found. . . . But the business
       of policemen and firemen is to act, not to speculate or meditate on whether the report is
       correct. People could well die in emergencies if police tried to act with the calm
       deliberation associated with the judicial process. Even the apparently dead often are
       saved by swift police response."
       Law enforcement need not verify the facts of a 911 call because doing so


       "'would dramatically slow emergency response time, and would therefore be at odds with
       the purpose of the emergency doctrine' . . . . [P]olice will routinely be summoned for
       matters that are not . . . real emergencies. We will not impose a duty of inquiry on the
       police to separate a true cry for help from a less deserving call for attention because the
       delay may cost lives that could have been saved by an immediate police response. The
       possibility that immediate police action will prevent injury or death outweighs the
       inconvenience we suffer when the police interrupt our ordinary routines in response to
       what turns out to be a non-emergency call. [Citation omitted.]" United States v. Snipe,
       515 F.3d 947, 953-54 (9th Cir. 2008).


       Fisher invokes Neighbors to support his argument that the emergency no longer
existed once the officers arrived and encountered the reporting party outside the house
uninjured who did not convey that someone inside the house was injured. We disagree.
While Neighbors provides the controlling test, it is factually distinguishable principally


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because law enforcement first entered the home and determined no emergency existed
before a search was then unlawfully conducted.


       In Neighbors, the landlord called 911 after entering an apartment and discovering
a man lying unresponsive on the couch. The landlord opened the door for law
enforcement. The officers tried to wake Neighbors by shouting, but Neighbors did not
move. They then entered the apartment because they were concerned for Neighbors'
health. The officers were able to wake Neighbors and then confirmed that Neighbors had
permission from the tenant to be in the apartment. Another officer heard Neighbors' name
over his police radio and recognized him as a drug offender. That officer drove to the
apartment and obtained Neighbors' consent to search his clothes, finding drugs.


       The Neighbors court held that the officers had the authority under the emergency
aid exception to enter the apartment based on the report of an unresponsive man inside on
the couch. 299 Kan. at 249. Once the officers woke Neighbors, they corroborated his
story that he had permission from the tenant to stay in that apartment. At this point, the
emergency was over and "[t]he responding officers were required to leave the apartment
once it was clear the occupants did not need medical assistance." 299 Kan. at 253. The
emergency had ended when the last officer arrived and conducted the unlawful search of
Neighbors' clothes. See Mincey, 437 U.S. at 393 (finding emergency aid exception did
not apply at time of search because everyone in apartment had been located and
circumstances requiring emergency aid no longer existed).


       More pertinent to our discussion is the factually similar case of United States v.
Holloway, 290 F.3d 1331 (11th Cir. 2002). There, police responded to two 911 calls
reporting gunshots and arguing from Holloway's house. Law enforcement arrived to find
Holloway and his wife on the porch. The officer instructed Holloway and his wife to raise
their hands and walk towards his patrol car. After placing Holloway in his patrol car, the
officer searched the house for possible victims. The officer found a shotgun on the side of


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house. After securing the shotgun, the officer searched the entire house but found no
injured people.


       In its analysis, the 11th Circuit Court of Appeals in Holloway focused on the role
that 911 calls play in the emergency aid exception. The officers received two reports
from dispatch of gunshots and arguing and, upon their arrival, nothing "dissuaded the
officers from believing the veracity of the 911 calls." 290 F.3d at 1338. The presence of
Holloway and his wife supported the information from the 911 calls. The court held that
"when exigent circumstances demand an immediate response, particularly where there is
a danger to human life, protection of the public becomes paramount and can justify a
limited, warrantless intrusion into the home." 290 F.3d at 1334. The court held that the
search was justified under the emergency aid exception and that "[t]he possibility of a
gunshot victim lying prostrate in the dwelling created an exigency necessitating
immediate search." 290 F.3d at 1338.


       Here, the police responded to a 911 call that someone had been shot. Like
Holloway, the officers encountered people outside the house. But the mere presence of
people outside the house where gunshots were reported did not remove the officers'
reasonable basis to search the house for victims. The officers were responding to a report
that someone had been shot in the house and did not have time to engage in a detailed
inquiry with the two unharmed women outside. The possibility of someone suffering
from a gunshot wound inside the house necessitated an immediate search.


       "[A]n officer may continue an emergency investigation until assured there is no
one inside in need of assistance—particularly when the officer encounters circumstances
that continue to raise suspicions." Neighbors, 299 Kan. at 251. The information Johnson
had was someone had been shot and possibly needed immediate assistance. Johnson
could not know for sure the physical state of the injured person without searching the



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house for that person. Under the emergency aid exception, Johnson had the authority to
act until assured that no one needed assistance.


       Fisher argues that when the reporting party or resident is literally standing in the
driveway when the officers arrive, failing to ask basic clarifying questions results in a
loss of any objectively reasonable basis to immediately search the home. Fisher argues
that if the purpose in entering a house is to render emergency medical assistance as
quickly as possible, asking those clarifying questions is necessary to determine if
emergency assistance is required and where in the house it is required.


       Here, when responding to a 911 call of someone shot in the house, Johnson or the
other officers were not required to stop and double-check with Teresa that someone in the
house was hurt. With the benefit of hindsight, had Johnson stopped to ask Teresa some
clarifying questions, it is possible he might have learned that no gunshot victim existed
and the emergency could have been dispelled. But the law does not require law
enforcement to be certain that someone needs emergency aid before searching a house; it
only requires police to "reasonably believe that a person within is in need of immediate
aid." Mincey, 437 U.S. at 392; see Neighbors, 299 Kan. at 249.


       Gunshot wounds can be—and often are—of a serious nature. Johnson and his
fellow officers acted quickly to find the person who needed medical attention. During
their search, they discovered Fisher in the basement with marijuana in plain view. The
officers possessed an objectively reasonable basis to search the house for a person injured
from a gunshot and limited the scope of their search to areas in the house where they
might find a person suffering from a gunshot wound. The district court was correct in not
suppressing the evidence.


       Affirmed.



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