entirely on evidence seized as a result of two illegal searches because both those searches violate the fourth amendment this court should suppress the evidence is there from reverse research and the first illegal search occurred when lieutenant bell of the quincy fire department responded to what he described as a small amount of smoke venting from the chimney of the garage that russell miller rented in quincy the state claims that we ten dollars entry of that garage was justified by the emergency aid doctrine however that doctrine requires specific circumstances that would justify a reasonable person in the belief that in a series emergency requiring immediate aid exists and that language is almost verbatim from brigham city stuart which is the two investigate what he believed was enormous violation because of what he described as the trash odor of the smoke the facts of the time bell describe him were these he received an hour long call it was this special area in quincy when he arrived at that location eventually found a small amount of smoke from the chimney of that garage he instead of immediately forcing entry he walked around the garage noticed nothing else was amiss there was not smoke emanating from the windows or  the door or the roof the walls were black and as he described he didn't even touch the walls to see if they were warm instead he walked around and he well went to the residence that was associated with the garage and asked if any of the residents had a key because he wanted to minimize the damage to the door and no point in his testimony the suppression hearing did he say that he believed an emergency existed rather he repeatedly said that he wanted to investigate what he described as the trash odor of the smoke which would of according to him  has student ordinance violation he also said he didn't expect to find a body inside the garage and we know he was on the scene for at least five minutes before he forced entry these are not the specific circumstances that would justify  seen if the if the scene was deteriorating in any way and there's no evidence of this in the record that it was there's no evidence that it was anything but stable and then and then yes by his own testimony the remedy for a a an ord violation was just a post that notice a violation which is just you know basically telling someone to knock it off and if russell continue to do it later he could have been fined or maybe eventually the state could a forced entry but he should have just remained on the scene and seeing what was happening obviously there was no emergency we know in hindsight but longer he was there the more he knew that it was an emergency and i think eventually realized that anyway i was backyard at three in the morning he immediately saw two juveniles drinking beer in the backyard they looked through the kitchen window of the residence and saw four adults restraining another juvenile and as they watched they saw that juvenile break free  in the saying i'm saw that juvenile restrained with such force that he was pushed up against the refrigerator that began to move across the kitchen floor and the supreme court said under those circumstances those are specific circumstances that would justify a belief that immediate entry was required without a warrant to aid the person who already been injured and to prevent further injury to others who may be threatening the mission of the fisher is a more recent case very similar to extreme fairly serious hit and run accident the heavily damaged the defendant's car followed the defendant home on the tenants car was so heavily damaged that he had to have a window or drive home eventually the police responded to the defendant's home but the officer in charge acknowledged at the suppression hearing that he didn't know whether the defended was injured not although we know from the the record that that suppression hearing that they repeatedly knocked on the door to no response they heard the dog barking inside but because the officer in that case said he he was speculating basically he didn't know he didn't have specific circumstances that would justify police that the person was indeed the defendant that the occidental in that case was not justified by the emergency doctrine and the court reversed the tr case that rather than immediately for a century if you believe that the meth lab was so dangerous he and securing the premises sen's calling the authorities to dismantle lab instead of doing that those things immediately in a five to ten minute conversation with  blister pack out of the stove the firemen that say officer fireman then left the scene is that right i think he remained on the scene that he placed the wood in the alley but he wasn't involved in searching certainly ok fire call and there was a police there were police on the scene when he responded or almost contemporaneously with when he responded and then when he said he had some training in mad fires when he saw the blister pack he notified the police that were on the scene  i believe that's correct if the state can correct me if the state's brief on page four says after firefighters have already left the scene mark was a police officer entered the garage because other police officers perry likely that there is some sort of blaze going on but the second illegal search occurred when as justice turner as he pointed out when he returned i'll open the door saw all the properly functioning wood stove which was operating exactly  before that but it certainly doesn't tell you in a supreme court case people being done in the first prong is that the purpose of the search must be totally divorced from the detection or investigation of crime in this case the time bell repeatedly said he was investigating what he believed to be an ordinance that the purpose must be to render aid to people in danger or you know prevent prevent danger to people around the situation here is a state concedes the smoke was contained in  circumstances this would not satisfy them and if you look at the main case upon which the state relies which is that six circuit case rory which is where at one thirty in the morning there was music blaring from a house you can hear a block away and there was a co specific but that in that case it was an immediate ongoing highly objectionable nuisance in this case lieutenant bell's they testimony about trash odor when and he was the only witness testified to this over and we know the nine one one call was not  russell repeatedly offended would have been fined and that when the c code says you know probably aren't supposed to be informed of the problem given seven days to a bit nuisance and only then can the the state intrude on their private reverse and i just want to briefly turn to the sentencing issue the state graciously pointed out that russell is being incorrectly serving seventy five percent time when he should be getting day for day credit because there was no showing that he made more than one hundred grams of meth in the garage if you have any questions about the state's concession i'm happy to answer them but it's supported by the plain language of the statute and the legislative history of the statue but if there's no questions i just rest on the br community care taking doctrine is doubtful as a justification for a justification to enter into a structure such as a home so therefore the first the a doctrine however does extend to entries within structures such as th if seventy eight in jackson in the garage was an alley behind seven twenty six jackson which appears to be and same area they did show up on one street and then had to go over to another street need to talk to somebody who sort of directed  no evidence of what specifically saying what was in the that the report other than it was the house fire but the party to repurpose and who could be recalled the report might not have been at the actual address but merely seems more pricing from what could have coming from a chimney that's not the case here there's specific facts that motivated this firefighter to act as he did and that is that this way this happened in may on a warm day and that this and more importantly the smoke had and o trash to it so it was not ordinary when burning chimney smoke in the office you experience in this court should defer to the off to the firefighters experience in fighting fires and in terms of what the the firefighter believe express concern smoke stack smoke could be quote smoldering fire inside the building record two o two he says he wasn't sure what scream to smoke with the swelling fire ready to backtrack ready to flash over and explain with those men and those were serious things it could blow out the the firefighter detective just felt trash all right so how is that a community here and i'm sure for him to go in and open the door to the school because they he didn't receive a complaint in the form of nine one one call he responded to that area he detected this firefighter who reasonably of times that there is the threat of an actual structure fire which poses an emergency threat to property that is his justification for going inside if he does not have the justification for going inside then he would be in a situation like what the suggests is simply trying to ascertain who is the owner and post a notice of violation and what i'm getting at let's assume for the sake of argument today that he had justification to break open open close with still that's functioning properly to determine under your theory that you're telling me it's a fish and her community caretaker function because of an ordinance violation he's investigating or i'm at that point not be found and that was authorized the summary payments you didn't have to post notice and have seven days so but the second problem is with the state disputes is this claim second prong there has to be a need to prevent some sort of danger safety that the police are allowed to engage in is a community caretaking function so if that's the case this that there's no real need to prevent dangerous being an element of community caretaking although in fact there was a public safety threat that was identified in mcdonogh in that cheaply or pace but that doesn't mean that that's a required elements every single case community they're taking i think what they did is the defense sort of like graphic on an actual requirement based on particular facts pretrial motion a grueling on the motion to suppress evidence so this is the sensing remarks by the church which in and says opinion in a row knisley find some sort of disconnect between the nine one one call and the the fact that trash burning is not allowed in the city and the time of year meant that truck there should not have been something burning from that chimney at that time if here cheekily with that kind of smoke coming out it was something that any reasonably prudent firefighter would and should investigate with the utmost urgency and the fact that the firefighter whose purpose here was to minimize property damage decided to check for a minute with nearby occupants of the associated residence this was the detached garage alley to see if there he could be obtained in order to prevent the door from having any force which would actually come pound the damage so that is a reasonable only thing to do consistent with the urgency of the situation and in fact courts caution reviewing courts ok maybe perhaps a couple minutes to force the door open with how we can mark so the five minutes are fully accounted for there's no standing around like in this plant case that talking for ten minutes about what possibly to do about something and plants are specifically was no there was just simply an assumption made that if there's a meth lab that somehow dangerous there's not any actual smoke that suggests leads to an experienced firefighter that there's a possibility of a structure fire that needs to be dealt with immediately ca it meant that he it would probably mean that he did not think that there was a risk to surrounding neighborhood at that point that required the response of additional units from across town but but when he did this does get to parties not read the question and so therefore the state has not had an opportunity to develop what sort of your review do you know only old women question whether motions officer when to see if he can find other evidence which would give him probable cause to obtain a search warrant and if so that's a problem for the state you group in prison if there was if there had been a subsequent search of the same location after firefighters laugh i agree that could be a problem but that would should have been raised by the defense and then the case could have been tried and the litigated on that basis and i've seen that one thing the same with point out is the states he's part of the supervision perhaps of officer russell who's training officer and it is then this officer martin's decisions then go see the warrant so if wrestle gets inside which i'm not sure if that's clear in the record while the firefighters are still inside the place then it seems like that's not so awesome martin's subsequent entry after officer russell's argue taints the probable cause to go get a warrant the scene is an opportunity to have clearly gated the questions whether that somehow created a fourth amendment violation that could be defended on the basis of some exceptional written work requirements that use i for i forgot if it's if there's an ongoing investigation affirming this case will not well not authorize firefighters police to just simply barge in any house that has a printing chimney so the court could very carefully draft the opinion to make that clear this is not represent her all sorts of of invasions of privacy so for those reasons state requests for  amendment does not contain a nuisance boehm exception except possibly in stream cases which this does not rise to though they had it as far as the warm day p es a minimal factors suggesting that something else maybe something may be amiss but with all the other factors that we know that there was no smoke the walls were black in the walls he didn't see that the walls were warm he spent time walking around clearly the balance of factors in the case there was no emergency people are allowed to have idiosyncratic habits you're allowed to use your chimney on a warm day the fourth amendment allows for that sort of privacy and security in your home your private property realize the very minimal interest in innocence pavan that's at it at issue here and if you look at it was the wisconsin which we didn't cite but since the state just brought this up in welsh which nuisances was not enough to justify it worthless and three in that case i know i said finally  about what's your response there i would agree with the state to the extent that it wasn't litigated in lower courts and the record maybe may need to be developed more fully so if you trying to figure out what exactly would be any further development in the record which would assist a judge in making for him each term i'm aware of some cases which i don't recall where the names where courts have held that when police officers enter a premises basically on the heels of the fire department that what they observe in is not subject to suppression so that's so if the fire department in the police were there the same time and the state's previous wrong when it says that the office