436 F.3d 1086 (9th Cir. 2006), 04-10681, United States v. Russell

Docket Nº:04-10681.
Citation:436 F.3d 1086
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Willie RUSSELL, Jr., a/k/a Wild Bill, Defendant-Appellant.
Case Date:January 30, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1086

436 F.3d 1086 (9th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,


Willie RUSSELL, Jr., a/k/a Wild Bill, Defendant-Appellant.

No. 04-10681.

United States Court of Appeals, Ninth Circuit.

January 30, 2006

Argued and Submitted Nov. 15, 2005.

Page 1087

Quin Denvir, Federal Defender, Sacramento, California, argued the cause and was on the briefs for the appellant.

William S. Wong, Assistant United States Attorney, Sacramento, California, argued the cause for the appellee. McGregor W. Scott, United States Attorney, was on the brief.

Appeal from the United States District Court for the Eastern District of California, D.C. No. CR-04-00054-LKK, Lawrence K. Karlton, Senior Judge, Presiding

Before: O'SCANNLAIN, THOMAS, and TALLMAN, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

This case requires us to consider whether the emergency doctrine or implied consent can support a warrantless search of a home on suspicion that a 9-1-1 caller or lurking predator was inside.


On Saturday, December 23, 2003, Willie Russell, Jr., placed two calls to the Sacramento Sheriff's Office (SSO) 9-1-1 dispatcher. In the first emergency call, Russell identified himself as "Gregory Hines," and explained to the operator that a gun went off and hit him in the foot, that he was wounded and in pain, and that he wanted the dispatcher to call an ambulance. The transcript of the first call shows that the Fire Dispatcher and the SSO Dispatcher were confused as to whether the caller had been shot, or had shot himself. After Russell's call was disconnected, the SSO Dispatcher said to the Fire Dispatcher "[the caller] didn't really confirm that he shot himself. He just said a 'gun went off.' " Each patrol car contained a mounted computer system and monitor, known as a "Mobile Data Terminal," which allows field officers to receive

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information pertinent to their calls through a "Computer Aided Dispatch," or CAD, which updates text provided by 9-1-1 dispatchers on screens in the police officers' cars. In this case, the CAD Event Report displayed to responding officers: "male stated gun went off and he shot [sic] in foot."

Russell called back and spoke to a second emergency dispatcher, giving his real name and address and stating, "I shot myself in the foot." Over the course of the phone call, Russell explained that he was "moving" the gun out of his bedroom closet when it went off. When asked whether he knew where the gun was currently, Russell first stated, "I don't know," then stated that he "left [the gun] upstairs somewhere. I dropped it on top of stuff on the floor." Russell also stated that "my girlfriend is going to kill me." Police were aware of Russell's comments; the CAD Event Report displayed: "[Willie is] sayin that his gf [girlfriend] is goin to kill him when she finds out what he did . . . gf not @ resd rite now [sic]."

The dispatchers asked whether Russell was alone, and he twice responded that nobody else was present. Again, the CAD Event Report reported to the responding officers that "Willie Russell . . . sed [sic] he is home alone." Later in the phone call, the dispatcher apparently overheard two unidentified female voices and asked whether there were other people there at that point, but Russell did not respond. The transcript of the phone call shows that female voices could be heard asking about the gun and whether Russell planned to give it to the police. An unidentified female voice asked: "Where's the gun at? Are you going to give 'em the gun?" The CAD Event Report informed the officers that the dispatcher "heard male & fem voice in bkgrnd askn what was goin on [sic]."

Russell told the dispatchers that he had opened the front door for the police:

Russell: I'm at the front door. I don't have the gun.

SSO: You're at the front door.

Russell: Yes, I crawled to the front door.

SSO: Okay, is the door unlocked?

Russell: Yes, I opened the door for them.

SSO: Okay, the door is open?

Russell: Please don't make me suffer.

SSO: The door is open or it's unlocked?

Russell: The door is open.

After his first call, the emergency dispatchers alerted police, who initially anticipated finding an injured man named "Gregory Hines," the pseudonym Russell supplied to the first emergency dispatcher. While en route the officers received updated information that a second man, "Willie Russell," was injured. As the officers neared Russell's house, the dispatcher informed them that the injured man did not know where the gun could be located, and that the injured man had opened the door for the police. Neither the police nor the emergency dispatchers were aware that Willie Russell and Gregory Hines were one and the same.1

Deputy Summer Elliott arrived near the scene first but waited outside the cul-de-sac entrance to the street until other units arrived. When asked why she did not enter the neighborhood herself, Deputy Elliott responded that "it is not safe to do so by myself with the unknown circumstances that was [sic] going on at the house.... A gun was discharged, and we don't really know what's going on inside."

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Similarly, Sergeant Roger Dillon explained that "Deputy Elliott staged around the corner. It's a safety issue. We don't go to those kind of calls by ourselves because of--they're not stable and the potential of getting hurt. So she staged around the corner." When other units arrived, Deputy Elliott, along with Sergeant Roger Dillon and Deputy Brian Templeton, entered the neighborhood.

Deputy Elliott testified that she saw a man--Russell, though Deputy Elliott did not know this yet--"hopping out to the car with two other females coming out of the garage door." Sergeant Dillon noted that there were two women with the injured man, though he had expected him to be alone. He testified that:

all the call kept saying is that there is no one else in the house, but then we're getting the conflicting information of other names. I did not--I did not see anything in the events or hear anything on the radio that would tell me that there were females on the scene at all.

The other officers were not asked whether they expected Russell to be alone.

Deputy Elliott ordered Russell out of the car and began questioning him, but kept her weapon holstered. When Deputy Elliott asked Russell to identify himself, he refused. Deputy Elliott was similarly rebuffed when she asked Russell "what happened there." Russell did not express to Deputy Elliott any objection to the entry of the other officers into the residence.

While Deputy Elliott was questioning Russell outside the house, Sergeant Dillon and Deputy Templeton immediately entered the house with their guns drawn. Sergeant Dillon testified that "for my safety, I drew my gun and kept it in a ready position where I could engage anyone who might pop up out of a closet, out of a doorway, out of anywhere." Sergeant Dillon explained that his "intent was to go through the house to look to see if there were any other victims inside the residence, anyone that was injured and needed medical attention, or if there was a suspect that may have injured the subject who in the event claimed to have been shot in the foot." He testified that "I was looking for another victim. And I was looking for possibly an armed subject inside the house." Sergeant Dillon then found the weapon in plain view in Russell's bedroom, but found no other person--injured or otherwise.

Russell was charged with a violation of 18 U.S.C. § 922(g)(1), which makes unlawful the possession of a firearm by a convicted felon. Russell moved to suppress the gun evidence. The district court denied the motion after an evidentiary hearing, holding that the exigent circumstances exception supported the search, and in the alternative, that Russell had consented to the search of his residence:

The situation was one in which there was sufficient uncertainty that it made perfect sense for the law enforcement officers to try to ensure that there wasn't another victim--or there might be some other circumstances which would require their clearing the house.

I also believe . . . that there was a consent and that the consent was not conditioned. And that while I agree with [defense counsel] that the circumstances giving rise to the consent no longer applied, the consent was still out there.

Russell subsequently entered a guilty plea pursuant to an agreement that reserved his right to appeal the denial of his motion to suppress.2

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Russell contends that the warrantless search cannot be sustained under the emergency doctrine. Our case law recognizes that the emergency doctrine, an exception to the warrant requirement, may support a warrantless search "if a police officer, while investigating within the scope necessary to respond to an emergency, discovers evidence of illegal activity, that evidence is admissible even if there was not probable cause to believe that such evidence would be found." United States v. Cervantes, 219 F.3d 882, 888 (9th Cir. 2000). See also United States v. Stafford, 416 F.3d 1068, 1073 (9th Cir. 2005).

The emergency doctrine derives from Mincey v. Arizona, 437 U.S. 385 (1978), which recognized police officers' community caretaking function. See id. at 392 (noting that the Court did "not question the right of the...

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