Chоice L. CAUSEY; Henretta Denise Bradley, Plaintiffs-Appellees, v. CITY OF BAY CITY; John May; Thomas Pletzke, Defendants, Joseph E. Doyle; Eric Sporman; Ken Souser, Defendants-Appellants.
No. 05-1142
United States Court of Appeals, Sixth Circuit.
Argued: Dec. 8, 2005. Decided and Filed: March 29, 2006.
444 F.3d 524
With respect to use of terminology unexpected of a child of similar age, D.S.‘s description of the oral sex involved in the abuse is strong evidence as to the reliability of his statements. When D.S. was three years old, he told Cousin Cindy that Petitioner performed oral sex on D.S. and that Petitioner played with D.S.‘s anus. When D.S. was five years old, D.S. told his fаther, mother, and the investigating detective that Petitioner made D.S. perform oral sex on Petitioner and that Petitioner performed oral sex on D.S. It is extremely unlikely that a child so young even has an inkling as to the concept of oral sex, let alone knowledge sufficient to concoct a falsehood concerning oral sex.
With respect to the lack of a motive to fabricate the statements, there is nothing in the record that suggests any animosity or any other reason D.S. would fabricate the statements about Petitioner. Indeed, D.S. “indicated that he liked ‘Uncle Troy’ when he was not made to touch Troy or when Troy did not touch him.” (J.A. at 1006.)
When viewed in the totality of the circumstances, the factors are sufficient to establish particularized guarantees of trustworthiness as to D.S.‘s statements to overcome the presumption of the inadmissibility of those statements. The manner in which the statements were elicited, the consistency of the statements, the use of terminology unexpected of such a young child, and the lack of a motive to fаbricate the statements all indicate that the statements were reliable. At most, D.S.‘s response to the detective‘s question of whether D.S. touched Petitioner‘s penis was unreliable and inadmissible, as the question was leading; however, the improper admission of this statement was harmless, when considering the extent of the reliable statements properly admitted.
For the foregoing reasons, we AFFIRM the order of the district court.
ROGERS, Circuit Judge.
Defendants Joseph E. Doyle, Eric Sporman, and Ken Souser, all of whom are police officers, appeal the district court‘s denial of their motion for summary judgment in this
ARGUED: Joseph Nimako, Cummings, McClorey, Davis & Acho, Livonia, Michigan, for Appellants. Russell C. Babcock, Mastromarco & Jahn, Saginaw, Michigan, for Appellees. ON BRIEF: Joseph Nimako, Cummings, McClorey, Davis & Acho, Livonia, Michigan, for Appellants. Victor J. Mastromarco, Jr., Mastromarco & Jahn, Saginaw, Michigan, for Appellees.
Before: MOORE, ROGERS, and McKEAGUE, Circuit Judges.
ROGERS, J., delivered the opinion of the court, in which McKEAGUE, J., joined. MOORE, J. (pp. 531-533), delivered a separate dissenting оpinion.
I.
Except where noted, the following facts are undisputed. At approximately 7:30 p.m. on December 31, 2000, Officers Doyle and Sporman were dispatched to 417 South Sheridan Street, the plaintiffs’ residence, to investigate a call reporting several gunshots fired from the backyard of that address. J.A. at 145-46. Officer Doyle knocked on the front door but received no response. J.A. at 147. Causey testified in his deposition that he and Bradley heard the knock but did not answer because they were in bed. J.A. at 269.
The officers then learnеd from the dispatcher that the call came from 415 South Sheridan Street. J.A. at 148. Officer Sporman went to that address to question the caller, Lisa Stevens. J.A. at 156. Stevens told Sporman that she had heard a
The officers then entered the plaintiffs’ fenced backyard. J.A. at 156. Noticing a small indentation in the snow on the back patio deck, Officer Sporman “reached down into the snow and scooped up” a bullet casing. J.A. at 156. Officer Doyle saw other indentations and “scooped up three more ... casing[s] out of the snow.” J.A. at 156. Before or after this discovery, one of the officers knocked on the back door of the house and received no аnswer. Compare J.A. at 156 (Officer Doyle knocked after), with J.A. at 497 (Officer Sporman knocked before).
Either a dispatcher or Sergeant Nancy Feinauer telephoned the residence to contact its occupants, but no one answered. Compare J.A. at 160 (Sgt. Feinauer called), with J.A. at 498 (a dispatcher called). Officers Doyle and Sporman learned that earlier in the evening, the dispatcher had received from 417 South Sheridan Street both a hangup call and a return call explaining that the earlier call had been made by a child playing with the telephone. J.A. at 159. The officers spoke again with Stevens, who once more stated that she heard one gunshot that was followed a couple of minutes later by four or five more gunshots. J.A. at 160. Stevens also told the police that she did not think that any children were at the plaintiffs’ residence. J.A. at 160.
Based on the foregoing information, Sergeant Feinauer authorized a warrantless, forcible entry of the plaintiffs’ residence to check for any injured persons inside. J.A. at 160. Sergeаnt Feinauer told the officers that she was sending backup. J.A. at 336-37. Officers Doyle and Sporman waited an estimated “15 to 30” minutes for their colleagues to arrive. J.A. at 337.
After the arrival of backup, Officer Doyle knocked once again on the plaintiffs’ front door. Officer Doyle knocked loudly on the front door six times and yelled that the police would enter the house. J.A. at 166. Officer Souser, who had arrived to provide backup, forced the plaintiffs’ front door open with a battering ram. J.A. at 171.
The parties disagree as to sоme events surrounding the events immediately preceding the officers’ forced entry. The plaintiffs allege that they responded to this, the second, knock at the front door. Causey testified that, at some point, he and Bradley spoke to the officers through a window. J.A. at 270. The officers told them that “they were there to check the well-being of the occupants.” J.A. at 270. According to Causey, Causey and Bradley “explained to them [that they] were fine.” J.A. at 270. Causey and Bradley also showed the officers that there were “no black eyes, no signs of fighting, none of that physical none of that.” J.A. at 270. Officer Doyle, however, testified in his deposition that no one within the house responded to the officers’ knocks and commands. J.A. 338. For purposes of this appeal, we assume the plaintiffs’ version.
The parties also dispute the nature of the officers’ conduct once they entered the plaintiffs’ residence. The district court addressed only the constitutionality of the officers’ entry, so the post-entry facts are not relevant to the issues presented in this appeal.
II.
“Because review of a denial of qualified immunity is an issue of law, our review is de novo.” E.g., Sample v. Bailey, 409 F.3d 689, 695 (6th Cir.2005). “Qualified immunity is an affirmative defensе that shields government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir.2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). To determine whether an officer is entitled to qualified immunity, we employ a two-step analysis: “(1) whether, considering the allegations in a light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly established.”2 Id. (internal citation omitted).
III.
The officers did not violate the plaintiffs’ Fourth Amendment right to be free from unreasonable searches by entering either the backyard or the residence. “The Fourth Amendment generally prohibits the warrantless entry of a person‘s home, whether to make an arrest or to search for specific objects.” Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948)). A fenced backyard such as the plaintiffs’ is within the curti-
1. The Plaintiffs’ Backyard
The officers’ warrantless entry into the plaintiffs’ fenced backyard was a reasonable search because the officers had a reasonable fear that someone in the house needed their immediate aid. Our opinion in Dickerson v. McClellan, 101 F.3d 1151 (6th Cir.1996), in which we reversed the district court‘s dеnial of qualified immunity, is instructive. In that case, officers at the scene confirmed a neighbor‘s report that nine shots had been fired inside a particular residence, but they did not know whether anyone was in the house. The officers in that case heard a loud, male voice from the porch of the residence and saw a telephone cord stretched towards the back of the house from where the voice was coming. Id. at 1159. We held first that an exigent circumstance, due to safety concerns, existed when the officers had a reasonable belief that a suspect was likely to use a weapon and second that the officers in that case were reasonable “to conclude that the firing of nine gunshots suggests a willingness to use a weapon.” Id. at 1160. At the time that the officers in this case entered the plaintiffs’ backyard, they had received a report of the shots-fired call, confirmed with the neighbor who called that six shots had been fired from the “back area” of the plaintiffs’ residence, and learned from the neighbor that she had not seen anyone enter or leave the plaintiffs’ property after she called the police. The officers’ confirmed information—that someone at the plaintiffs’ residence had fired a gun six times, that no one had entered or left the residence since the shots were fired, and that no one had answered the first knock at the door—made it reasonable for them to believe that someone inside the house was willing to use a weapon and thus that an exigent circumstance existed.
There is no substantial basis to distinguish Dickerson from this case. Although the police in Dickerson heard a loud voicе and saw a telephone cord extending to the area of the house from which the voice was coming, we did not rely on these facts in reaching our decision. Referring to United States v. Bates, 84 F.3d 790, 795 (6th Cir.1996), we held first that an exigency exists when officers can demonstrate that a suspect has a willingness to use a weapon, and second that the firing of nine shots demonstrates such a willingness. Any evidence of the telephone cord and the loud voice was unnecessary to establish an exigency. It is also true that there were nine shots fired in
2. The Plaintiffs’ Residence
Because the officers continued to have a reasonable fear that someone in the house needed their immediate aid, the officers’ warrantless entry into the plaintiffs’ residence was a reasonable search. Plaintiffs attempt, but are unable, to demonstrate that the officers no longer reasonably believed that an exigency existed at the time that the officers entered the residence. Plaintiffs first point to the fact (which we accept for the purpose of this interlocutory appeal) that, from a window, they told the officers that there was no emergency and they showed the officers that there were no signs of violence. But by the time the officers received the plaintiffs’ assurances, they had a report that shots had been fired from the residence, that a 911 call had been made from the residence, that someone in the residence claimed that a child had made the call, and that no children were thought to be in the residence. Although the officers might have inferred that an exigency did not exist from the plaintiffs’ assurances that no one was injured, it was nevertheless “equally plausible and not unreasonable,” Dickerson, 101 F.3d at 1160, for the officers to infer that either (1) the plaintiffs were concealing another person (perhaps incapаcitated by the gunshots) inside the house or (2) the plaintiffs were being intimidated to give assurances by an unseen attacker in the residence. See Commonwealth v. Morrison, 429 Mass. 511, 710 N.E.2d 584, 587 (1999) (“[The officers] might rightly be concerned that the assurances [that the woman] gave them at the door were the result of intimidation by the defendant whom they had reason to believe was lurking within.“). The plaintiffs’ assurances, therefore, did not render it unreasonable for the officers to continue believing that someone inside needed their aid.
The fact that the officers briefly investigated the situаtion and waited for backup does not preclude an exigency. Because we held that there was an exigent circumstance in Dickerson even though the officers in that case confirmed a shots-fired call with a neighbor before entering the residence, see Dickerson, 101 F.3d at 1154,
Although this court has held that the exigent safety exception did not apply when police delayed their entry for an extremely long period of time to investigate, the delay in this cаse was not prolonged. In O‘Brien v. City of Grand Rapids, 23 F.3d 990, 997-98 (6th Cir.1994), we held that the officers’ delay of four-and-a-half hours, even after backup had arrived, to investigate and monitor a situation involving a mentally unstable, armed man belied the officers’ claim of exigent circumstances. We also held that the officers’ claim that there were exigent circumstances was undermined by the fact that the man in that case had done nothing threatening for over four hours. This case, in comparison, presents a delay of, at most, a half hour while the officers awаited backup. Moreover, the officers in this case had a confirmed report of several shots fired. Therefore, although a very long delay can demonstrate that no exigent circumstances existed, the delay in this case was reasonable to protect the safety of the officers and others.
The officers’ warrantless entry into the plaintiffs’ residence was justified by exigent circumstances. Because the plaintiffs’ Fourth Amendment rights were not violated by the entries into the plaintiffs’ backyard and residence, “thеre is no necessity for further inquiries concerning qualified immunity” as to the entries. Saucier, 533 U.S. at 201.
VI.
For the reasons set forth above, we **REVERSE** the order of the district court denying the officers qualified immunity regarding their entries into the plaintiffs’ residence and backyard.
KAREN NELSON MOORE, Circuit Judge, dissenting.
When Officers Joseph E. Doyle, Eric Sporman, and Ken Souser (“officers“) entered both the backyard and home of Choice L. Causey and Henretta Bradley (“plaintiffs“) without a warrant, it was clearly established that there were no exigent circumstances to justify the warrantless entry.1 Because I would thus affirm the district court‘s order denying qualified immunity, I respectfully dissent.
The “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. U.S. Dist. Court for E. Dist. of Mich., 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Accordingly, “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a war-
Relying principally on a report of the sound of gunshots coming from the plaintiffs’ backyаrd, the officers invoke the category of exigent circumstances implicated when “a suspect represents an immediate threat to officers and the public.” Shamaeizadeh v. Cunigan, 338 F.3d 535, 548 (6th Cir.2003), cert. denied, 541 U.S. 1041, 124 S.Ct. 2159, 158 L.Ed.2d 729 (2004). Our cases demonstrate that a shots-fired call must be accompanied by other evidence of the alleged shooter‘s dangerousness in order to constitute an immediate threat. In Hancock v. Dodson, 958 F.2d 1367 (6th Cir.1992), exigent circumstances existed where, in addition to a shots-fired report, the police also knew that the suspect was “suicidal and possibly homicidal” (according to the suspect‘s psychologist) and had threatened to kill any responding officer. Id. at 1369, 1375. In United States v. Bates, 84 F.3d 790 (6th Cir.1996), exigent circumstances were absent where, without more, the officers believed that suspects inside an apartment had a gun. Id. at 795. Explaining that “[t]he presence of a weapon creates an exigent circumstance, provided the government is able to prove they possessed information that the suspect was armed and likely to use a weapon or become violent,” we cited several examples of evidence that would establish such a likelihood: “threats to an officer‘s safety, a criminal record reflecting violent tendencies, or a verified reputation of a suspect‘s violent nature.” Id. Like the facts in Hancock, these examples evidence the suspected shooter‘s dangerousness and therefore go to the immediacy of the threat.
We applied Bates in Dickerson v. McClellan, 101 F.3d 1151 (6th Cir.1996), finding exigent circumstances where a neighbor called 911 to report nine gunshots coming from a house and confirmed the report in person to responding officers, the occupant of the house was drunk, and the officers heard the occupant “yelling in a threatening tone.” Id. at 1154. The immediate threat was established not by the shots-fired report alone but by its combination with additional information that the alleged shooter was dangerous: he was drunk, and the police heard him shouting in a threatening manner. These circumstances are of a piece with the factors discussed in Hancock and Bates. Thus, in Hancock and Dickerson (and implicitly in Bates), we indicated that officers responding to a shots-fired report must have additional evidence of an immediate threat before entering a home without a warrant. In contrast, the officers here lacked any evidence of an immediate threat other than the shots-fired report itself.
Furthermore, even if a shots-fired report alone could establish exigent circumstances, the purported exigency would be extinguished by other circumstances showing that the gunshots did not represent an immediate threat. See O‘Brien v. City of Grand Rapids, 23 F.3d 990, 997-98 (6th Cir.1994). Here, the officers possessed precisely this kind of information. First, the plaintiffs answered the officers’ knocks at the front door, explaining that they were fine and showing the officers that there were no signs of injury. Second, the plaintiffs’ neighbor told the officers that she had heard gunshots coming from the plaintiffs’ home on both the prior New Year‘s Eve and the Fourth of July, and she did not suggest that any harm had come from these prior incidents. This in-
The majority‘s reliance on Morrison, 710 N.E.2d at 587, to endorse the officers’ dismissal of this evidence is unconvincing. It is true that the court concluded that the officers “might rightly be concerned that the assurances [a woman] gave them at the door were the result of intimidation by the defendant whom they had reason tо believe was lurking within.” Id. Yet there were specific reasons for the officers to doubt the sincerity of the woman‘s assurances: the officers knew that the defendant had been in the woman‘s apartment earlier that night, which made it more likely that he was there again; the officers knew that the woman had a “history of domestic problems” with the defendant (culminating in a protective order against him), which made it more likely that he was willing to intimidate the woman and had a reason to do so (i.e., to avoid being caught violating the prоtective order); and earlier that night, the woman had lied to the officers about the defendant‘s presence in her residence, which made it more likely that she was lying again. Id. at 585. Quite unlike Morrison, the officers here were aware of no facts to suggest that they should have disbelieved the plaintiffs’ assurances or the neighbor‘s description of the plaintiffs’ celebratory shooting habits.
As the cases discussed above demonstrate, it was clearly established that the circumstances known to the officers at the time they entered the plаintiffs’ backyard and home were not exigent. Thus, the officers violated the plaintiffs’ clearly established Fourth Amendment rights by proceeding without a warrant and are not entitled to qualified immunity. Accordingly, I respectfully dissent.