U.S. v. Kempf, 04-2920.
| Decision Date | 07 March 2005 |
| Docket Number | No. 04-2920.,04-2920. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John D. KEMPF, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Rita M. Rumbelow (argued), David Reinhard, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
John K. Smerlinski (argued), Madison, WI, for Defendant-Appellant.
Before BAUER, EASTERBROOK, and WOOD, Circuit Judges.
John Kempf was indicted by a federal grand jury on one count of unlawful possession of a sawed-off shotgun. After pleading not guilty, Kempf filed a motion to suppress evidence that was seized from his room at a boarding house. The motion was denied by the district court. He then pleaded guilty to the indictment, reserving his right to appeal the suppression issue. Since exigent circumstances justified the initial warrantless entry into Kempf's room, we affirm.
On December 13, 2003, Kempf accidentally shot himself and sought treatment at a local hospital in Superior, Wisconsin. At the hospital, Kempf told police that a gun had fallen off the wall in his room, discharged when it hit the ground, and he was struck in the leg. However, the officer at the hospital noticed that the wound did not appear to be consistent with this version of events, in that the entry wound appeared to come from above rather than below. Kempf also informed police that there was a teenage boy in the house at the time he was shot. Kempf was either unwilling or unable to provide further details about the incident, including the name of the boy or the location of the boarding house where the shooting occurred.
Sergeant John Nowicki, who helped question Kempf at the hospital, attempted to locate the residence where the shooting had occurred. Nowicki was concerned about the safety of the teenage boy at the house and also the public at large; he had no way of knowing whether the boy had any role in the shooting or was possibly in danger himself. His investigation determined that the residence in question was 1828 Banks Avenue. Nowicki proceeded to this address and was met there by Officer George Gothner. The officers knocked on both doors to the house and David Ennis, a teenage boy, answered the back door and invited the officers inside. Ennis explained that his mother, who owned the house, was not home. He also explained that he had heard a gunshot and a cry of pain earlier in the day, while he was playing video games. Ennis stated that Kempf then came into his room and asked for help in walking to his car. After helping Kempf walk out to his car, Ennis resumed playing video games. He did not call 911 or his mother in response to the shooting. Nowicki observed that Ennis did not seem at all concerned about the situation, was difficult to understand, and had a flat affect. He initially suspected that Ennis was under the influence of drugs, but later determined that this was just his normal demeanor.
Sergeant Nowicki asked Ennis about the location of the gun which had been involved in the incident. What transpired next is a point of contention. According to the officers, Ennis turned and began to climb up the stairs, despite the fact that they had not asked him to retrieve the gun. Nowicki testified that he warned Ennis several times and told him to stop and wait. Ennis, however, continued up the stairs. According to Ennis, he initially told the police that the gun was in Kempf's room, then went up the stairs to show them. Ennis claims that he was never told by the officers to stop going up the stairs or into the room. Regardless, the officers followed Ennis up the stairs.
At the top of the stairs, concerned for his own safety, Nowicki drew his weapon and again warned Ennis not to go into the room. Nowicki noticed a room with a light on and the door wide open. Ennis entered the room and motioned vaguely toward a gun on the wall. Nowicki entered the room, ordered Ennis out, and quickly surveyed the situation. He immediately noticed several knives on the wall, a small derringer gun...
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