Case Information
*1 Before M ANION , W ILLIAMS , and H AMILTON , Circuit Judges. W ILLIAMS , Circuit Judge
. On December 29, 2010, a Mil- waukee police officer responding to a report of gunshots near the 1900 block of South 12th Street saw a Hispanic male running towards a building at 1830 South 13th Street. A witness then told the officer that her cousin had been shot by a black male and that her cousin was hiding in an apartment in that building. After police officers approached the apartment and knocked, Defendant *2 Luis G. Delgado, who was the Hispanic male seen earlier, and the shooting victim, who had a visible graze wound on his wrist, came out of the apartment. The officers detained Delgado in the squad car and then, without a warrant, entered and searched his apart- ment finding various firearms. Delgado was indicted for being a felon in possession of a firearm and for pos- sessing an unregistered firearm. Delgado moved to sup- press. Both the magistrate judge and the district court agreed that the warrantless search was not justified by exigent circumstances, but the district court found that the search was a valid protective sweep and denied Delgado’s motion. Pursuant to the conditional plea agreement, Delgado pled guilty and was sentenced to a year and a day of imprisonment.
Delgado now appeals the denial of his suppression motion. The government concedes that the warrantless search was not a valid protective sweep, but argues that exigent circumstances existed because a reasonable officer could have believed that the unaccounted-for shooter was still hiding in the same apartment from which the shooting victim and Delgado had emerged. However, we agree with the magistrate judge and the district court and reject that argument. Absent any verbal or non-verbal indication from the victim, the witness, or Delgado that anyone else was in the apart- ment or that the victim or Delgado had been subjected to violence inside the apartment, the mere fact that the shooter was generally at large was not enough for a reasonable officer to believe that the shooter was specifically in the apartment. Therefore, we reverse *3 the denial of Delgado’s suppression motion, vacate the judgment of conviction, and remand with instructions to grant Delgado’s suppression motion and for addi- tional proceedings consistent with this decision.
I. BACKGROUND
On December 29, 2010, Milwaukee police officers re- sponded to a report of gunshots in an alley near the 1900 block of South 12th Street. When they arrived, one officer noticed a Hispanic male (later identified as Delgado) running from the alley towards a building at 1830 South 13th Street clutching his left waistband. While following him, the officer was stopped by a witness who said that her cousin, Adrian Aviles, told her that a black male had shot him in the alley and that Aviles was hiding in Delgado’s apartment at 1830A South 13th Street. The officers went to the apart- ment and knocked on the door. After getting no response, they prepared to force their way into the apart- ment when Aviles, who had a visible graze wound on his wrist, came out of the apartment with Delgado, who was unarmed. Neither Aviles nor Delgado indicated — in words, demeanor, or otherwise — that the shooter was in the same apartment from which they exited. There was no indication that anyone else was in the apart- ment or that Aviles or Delgado had been subjected to violence inside the apartment. After recognizing Delgado as the Hispanic male spotted earlier, the officers handcuffed him and placed him in the back of a squad car.
The officers went back to the building, entered Delgado’s apartment without a warrant, and searched it. Inside Delgado’s bedroom closet, the officers found four antique rifles and two shotguns, including one sawed-off shotgun. During questioning, Delgado said he was the sole occupant of the apartment and had been previously convicted for armed robbery.
Delgado was charged with being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and for possessing an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871. Delgado moved to suppress the firearms, the parties stipulated to the facts, and no evidentiary hearing was held. The magistrate judge recommended granting the motion, finding that no exigent circumstances existed to justify the warrantless search, and that the search was not a valid protective sweep. The government objected to the recommendation but did not ask the district court for permission to supplement the record or for an evi- dentiary hearing. The district court, relying on the stipu- lated facts, agreed that no exigent circumstances existed, but denied the motion because it found that the search constituted a protective sweep. Delgado pled guilty pursuant to a conditional plea agreement which permitted him to challenge the denial of the suppres- sion motion on appeal. He was sentenced to one year and a day of imprisonment and has appealed the denial of his suppression motion.
II. ANALYSIS
Though the government argued before both the magis- trate judge and the district court that the warrantless search was justified as a protective sweep, it concedes on appeal that it was not. The government now argues exclusively that the search was justified by exigent cir- cumstances.
“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.”
United States v. Schmidt
, ___ F.3d ___,
2012 WL 5392623, at *2 (7th Cir. Nov. 6, 2012) (citation
omitted). Exigent circumstances exist, for example,
when officers must “ ‘protect a [person] from imminent
injury.’ ”
Kentucky v. King
, ___ U.S. ___,
The government argues that a reasonable officer
could have believed that the shooter chased Aviles into
Delgado’s apartment and hid there after the officers
knocked on the door, while Aviles and Delgado left
*6
the apartment. It suggests that the officers needed to
search the apartment to find the shooter, who posed an
immediate threat to the officers and others. But the gov-
ernment points to no signs of any further shooting, strug-
gle, or presence of other persons in that apartment
that were observed by the officers when they arrived.
When Aviles and Delgado came out of the apartment
in response to the officers’ knocking, neither of them
gave any verbal or non-verbal indication to the officers
that the dangerous shooter was in the apartment. It
is unreasonable to believe that, faced with such life-threat-
ening danger, both the shooting victim and Delgado
would leave the apartment with nary a word or any
expression whatsoever indicating that the shooter was
just over their shoulder or that they were within seconds
of being killed.
Cf., e.g.
,
United States v. Arch
, 7 F.3d
1300, 1304-05 (7th Cir. 1993) (defendant’s “irrational,
agitated, and bizarre” behavior, coupled with other
suspicious signs of violence, sufficient to create rea-
sonable belief of exigent circumstances). Furthermore,
the witness who approached the officer said nothing
about the shooter chasing Aviles into Delgado’s apart-
ment. It is also unreasonable to think that Aviles would
tell his cousin that he had been shot and was hiding
in Delgado’s apartment, but fail to mention that the
shooter was after him. The mere fact that the shooter
was generally at large is not enough for a reasonable
officer to specifically believe that he was in the apart-
ment.
Cf. United States v. Ellis
,
For the government’s theory to be reasonable under these circumstances, one would have to believe that the shooter (lethally armed and bent on killing Aviles), Delgado (potentially lethally armed and bent on pro- tecting Aviles), and Aviles rushed into the sole-occupant apartment and were poised for a fatal showdown, but that the officers happened to knock on Delgado’s door at the precise climactic moment before anyone could pull a trigger or throw a punch, causing the parties to immediately suspend all hostilities while the shooter scrambled into a hiding position and Aviles and Delgado left acting as if nothing had happened. The presumption of unconstitutionality that attaches to warrantless searches requires the government to point to something that would lead a reasonable officer to think that this improbable scenario actually transpired, but the government simply has not done so.
The government argues that Aviles’s and Delgado’s
silence when they came out of the apartment does not
mean that the shooter was not in the apartment, because
victims of violence sometimes choose to remain silent
to prevent an investigation into their own criminal
activity or to prevent their wounded foe from receiving
aid. But this argument erroneously suggests that the
defendant carries the burden of proving a lack of exigent
circumstances, when it is actually incumbent upon the
government to point to some
affirmative
sign of exigency.
*8
Silence in this context cannot be that sign, as it could
have easily meant any number of things having nothing
to do with exigent circumstances.
Cf., e.g.
,
Ellis
, 499 F.3d
at 691 (finding no exigent circumstances because
general movement noises in response to officer’s
knocking do not automatically mean that evidence is
about to be destroyed, when they could simply signal
someone getting up to answer the door). The govern-
ment notes that in other cases, police officers have
validly entered homes without a warrant upon suspicion
of domestic violence even when the victim remains
silent upon answering the door, but in those cases,
silence or an indication that everything was fine was
not
in and of itself
an affirmative indication of exigent
circumstances. The victim’s silence simply failed to
vitiate
other
affirmative indications that something dan-
gerous was happening inside the home.
See Hanson v.
Dane Cty.
,
The government’s failure to carry its burden compels
us to find that the officers violated Delgado’s Fourth
Amendment rights when conducting a warrantless
search of his apartment. So we reverse the denial of
Delgado’s suppression motion, vacate his conviction,
*9
and remand for additional proceedings consistent with
this decision. In remanding, we also instruct the district
court to grant Delgado’s suppression motion. After the
magistrate judge found a lack of exigent circumstances
based on a set of stipulated facts, the government could
have asked the district court to supplement the record
and could have requested an evidentiary hearing.
See
28 U.S.C. § 636(b)(1);
Hynes v. Squillace
, 143 F.3d 653,
656 (7th Cir. 1998);
Goffman v. Gross
,
III. CONCLUSION
For the above-stated reasons, we R EVERSE the denial of Delgado’s suppression motion, V ACATE his judg- ment of conviction, and R EMAND with instructions to grant his suppression motion and for additional pro- ceedings consistent with this decision.
11-29-12