IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. MARSHALL

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLANT,

V.

DANIEL S. MARSHALL, APPELLEE.

Filed May 26, 2015. No. A-15-019.

Appeal from the District Court for Lancaster County: STEPHANIE F. STACY, Judge.

Affirmed.

Joe Kelly, Lancaster County Attorney, Patrick F. Condon, and Michael S. Boal, Senior 

Certified Law Student, for appellant.

Nancy K. Peterson for appellee.

RIEDMANN, Judge.

INTRODUCTION

Pursuant to Neb. Rev. Stat. § 29-824 (Reissue 2008), the State appeals an order granting a 

motion to suppress evidence discovered during a warrantless search of a house owned by Daniel 

S. Marshall. Because the State failed to prove that the police officers had reasonable grounds to 

believe an emergency existed and that there was an immediate need for their assistance for the 

protection of life or property, the district court’s order is affirmed.

BACKGROUND

Marshall was charged in the district court for Lancaster County with possession of a 

firearm by a prohibited person after law enforcement located a firearm in his residence during a 

welfare check. He moved to suppress all evidence gathered by law enforcement as a result of 

entering and searching the residence because it violated his right to be free of unreasonable 

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searches and seizures as guaranteed by the U.S. and Nebraska Constitutions. A suppression hearing 

was held, during which the following evidence was adduced.

On December 22, 2013, the animal control division for the City of Lincoln received a 

complaint of an aggressive pit pull running loose in a Lincoln neighborhood. Animal control 

officer Cheryl Bomberger responded to the call at approximately 12:30 in the afternoon. 

Bomberger located the animal but was unable to capture it without assistance.

Bomberger was aware from previous contacts that the dog belonged to the residents of a 

house located at 18th and H Streets, so she approached the home to try to make contact with the 

owners. She noticed that the storm door of the residence did not latch and that the outer wooden 

door, which was immediately adjacent to the storm door, was ajar approximately 8 to 10 inches. 

The evidence showed that the outer wooden door led into a covered porch area which was 

approximately 4 feet deep and 10 feet wide. At the rear of the covered porch was a second wooden 

door which led directly into the living area of the residence. Bomberger testified that she did not 

see the second wooden door initially, but later discovered that it was ajar approximately 8 to 10 

inches as well. She knocked on the outer wooden door, but received no response.

Bomberger contacted Lincoln Police due to the fact that the door to the residence was ajar 

and she knew, based on previous contacts, that a “grandmother” lived in the home. She testified 

that it was normal practice for animal control to call police to request a welfare check under 

circumstances such as these, where a door to a residence is ajar and they have reason to believe 

that the owners of an animal are elderly or handicapped.

Lincoln police officers Michael Pratt and Stacy Pratt were dispatched to the scene. While 

en route, Officer Stacy Pratt radioed to Officer Michael Pratt that she had previously been to this 

residence to assist animal control with an aggressive dog complaint and had made contact with a 

resident by the name of Daniel Marshall, who was issued a citation regarding the dog. When 

Officer Michael Pratt arrived on scene, Bomberger advised him of the current situation with the 

dog and expressed her concern about the door being open and the older woman that lived there.

Officer Michael Pratt testified that Bomberger advised him that she recognized the dog 

from prior contacts and knew that it belonged to the residents at a particular house at 18th and H 

Streets. Bomberger further advised him that she had tried to make contact with the residents by 

knocking on the door and by telephone, but was unable to reach anyone. According to Officer 

Michael Pratt, Bomberger indicated that an elderly woman with “some health problems” lived 

there, and Bomberger was concerned that maybe the woman was incapacitated or in need of 

assistance; however, Bomberger did not indicate to Officer Michael Pratt the nature of the 

woman’s health problems, how she became aware of this information, or when she had last seen 

this woman.

Officer Stacy Pratt arrived on scene shortly thereafter. She testified that Officer Michael 

Pratt was already involved in a conversation with Bomberger when she arrived, so she only heard 

part of their conversation. According to Officer Stacy Pratt, Bomberger stated that she was aware 

of an elderly woman that lived at the residence that “might have some health issues.” However, 

during the suppression hearing, Bomberger acknowledged that she had not seen the woman at the 

residence since 2010, and did not have any information regarding the woman’s health issues on 

the date in question, nor any specific knowledge about her physical condition.

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Both officers testified that the dog was very aggressive, and was growling, barking, and 

showing its teeth as it charged toward them, causing Officer Michael Pratt to draw his firearm for 

protection. A second animal control officer arrived shortly thereafter, and they were able to confine 

the dog.

Once the dog was safely confined, Officers Michael and Stacy Pratt approached the house 

and noticed that the interior wooden door was slightly ajar. They testified that there was a storm 

door with a glass front that led into a small vestibule porch area. Through the glass storm door, 

they could see the interior wooden door that appeared to lead into the house. Neither officer 

remembered seeing the first wooden door immediately adjacent to the storm door, and testified 

that it must have either been wide open or not attached that day. Officer Michael Pratt testified that 

the interior wooden door was ajar approximately 4 to 5 inches, which caused him concern. Officer 

Stacy Pratt estimated that the door was 5 to 10 inches ajar. The officers knocked on the door and 

shouted their presence several times, but received no response. They decided to make entry into 

the house to check if there was an elderly woman in need of assistance.

Upon entering the residence, the officers made a cursory search of the upper level and 

basement areas looking for anyone that might be in need of assistance. While walking through one 

of the upstairs bedrooms, Officer Michael Pratt noticed a semi-automatic handgun sitting on a 

closet shelf at eye level, as well as a magazine with ammunition. He testified that the closet did 

not have a door and he did not have to move any items on the closet shelf in order to see the gun 

or the ammunition. Officer Stacy Pratt testified that she too could see directly into the closet, but 

she could not recall whether the closet door was open or there simply was no door. At that point, 

neither officer touched or moved the gun, but instead continued their search of the house.

After searching the remainder of the house and finding no one, both officers returned to 

the bedroom where they had observed the gun. Officer Michael Pratt picked up the gun, copied 

down its make, model, and serial number, and then placed it back on the closet shelf. When asked 

why he did that, he responded, “I don’t know; just curious.” The officers then secured the doors 

and exited the residence.

Immediately upon leaving, Officer Michael Pratt called to check the criminal history of the 

defendant, Daniel Marshall, which revealed that he was a convicted felon. Officer Michael Pratt 

testified that he decided to check Marshall’s criminal history because he suspected there was a 

possibility that he may be a convicted felon based on the information he had received earlier that 

day from Officer Stacy Pratt. Officer Michael Pratt then checked the status of the gun and 

discovered that it had been reported stolen. However, he acknowledged that at the time he observed 

the gun, he had no reason to believe that it was stolen or that anyone residing in the house was a 

convicted felon.

Law enforcement obtained and executed a search warrant later that day, during which the 

gun and ammunition were seized from the residence, as well as four pieces of mail to prove 

Marshall’s occupancy. Officer Michael Pratt acknowledged that when drafting the search warrant 

affidavit, he did not allege that the elderly woman was a resident of the house or that she had health 

concerns.

Following the suppression hearing, the district court issued a written order granting 

Marshall’s motion to suppress. It found the State failed to prove that the officers had reasonable 

grounds to believe an emergency existed, and that the search of the closet shelf while inside the 

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home far exceeded the reasonable scope of a welfare check for an elderly resident in distress. The 

State timely appeals from the district court’s decision.

ASSIGNMENTS OF ERROR

The State assigns that the district court erred in finding that the officers’ entry into the 

residence was not justified by the emergency doctrine and in granting Marshall’s motion to 

suppress.

STANDARD OF REVIEW

An appellate court will uphold the trial court’s ruling on a motion to suppress unless the 

trial court’s finding of fact are clearly erroneous. State v. Eberly, 271 Neb. 893, 716 N.W.2d 671 

(2006). In making this determination, the appellate court does not reweigh the evidence or resolve 

conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and considers 

the trial court observed the witnesses testifying in regard to such motions. Id. In cases involving 

exigent circumstances, the trial court’s conclusion as to whether the facts, when viewed from the 

standpoint of an objectively reasonable police officer, establish the existence of probable cause or 

the presence of exigent circumstances, must be reviewed de novo. See id.

ANALYSIS

The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska 

Constitution guarantee against unreasonable searches and seizures. State v. Rodriguez, 288 Neb. 

878, 852 N.W.2d 705 (2014). A police officer who has obtained neither an arrest warrant nor a 

search warrant cannot make a nonconsensual and warrantless entry into a suspect’s home in the 

absence of exigent circumstances. State v. Eberly, supra, citing State v. Plant, 236 Neb. 317, 461 

N.W.2d 253 (1990); State v. Resler, 209 Neb. 249, 306 N.W.2d 918 (1981). Exigency 

determinations are generally fact intensive, but several commonly recognized categories include:

(1) ‘hot pursuit’ of a fleeing felon; (2) threatened destruction of evidence inside a residence 

before a warrant can be obtained; (3) a risk that the suspect may escape from the residence 

undetected; or (4) a threat, posed by a suspect, to the lives or safety of the public, the police 

officers, or to [an occupant].

State v. Eberly, supra.

At issue in this appeal is the fourth category, which is also called the “emergency doctrine.”

One rationale for the emergency doctrine is “to allow police officers [to] enter a dwelling without 

a warrant to render emergency aid and assistance to a person whom they reasonably believe to be 

in distress and in need of that assistance.” State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990) 

(internal citations and quotations omitted). See also, Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 

2408, 57 L.Ed.2d 290 (1978) (stating that police may make warrantless entries on premises where 

the police “reasonably believe that a person within is in need of immediate aid.”).

The Nebraska Supreme Court has summarized the elements of the emergency doctrine as 

follows: (1) the police must have reasonable grounds to believe an emergency exists and an 

immediate need for their assistance for the protection of life or property; (2) the search must not 

be primarily motivated by intent to arrest and seize evidence; and (3) there must be some 

reasonable basis, approximating probable cause, to associate the emergency with the area or place 

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to be searched. State v. Eberly, supra. However, we no longer consider whether a search is 

primarily motivated by an intent to arrest and seize evidence, as the U.S. Supreme Court has since 

clarified that an officer’s subjective motivation is irrelevant in determining whether that officer’s 

actions violate the Fourth Amendment. See id., citing Brigham City, Utah v. Stuart, 547 U.S. 398, 

126 S.Ct. 1943, 164 L.Ed.2d 650 (2006).

When applying the emergency doctrine, the Nebraska Supreme Court has stated that two 

principles must be kept in mind:

(1) Since the doctrine is an exception to the ordinary Fourth Amendment requirement of a 

warrant for entry into a home, the burden of proof is on the state to show that the 

warrantless entry fell within the exception. . . . (2) An objective standard as to the 

reasonableness of the officer’s belief must be applied.

. . . [I]n justifying the particular intrusion the police officer must be able to point to specific 

and articulable facts which, taken together with rational inferences from those facts, 

reasonably warrant that intrusion. . . . And in making that assessment it is imperative that 

the facts be judged against an objective standard: would the facts available to the officer at 

the moment of the seizure or the search “warrant a man of reasonable caution in the belief”

that the action taken was appropriate?

State v. Eberly, supra, citing State v. Resler, 209 Neb. at 255, 306 N.W.2d at 922-23.

The Nebraska Supreme Court has condoned warrantless searches of a residence on 

occasion. See e.g. State v. Eberly, 271 Neb. 893, 716 N.W.2d 671 (2006); State v. Plant, 236 Neb. 

317, 461 N.W.2d 253 (1990); and State v. Resler, 209 Neb. 249, 306 N.W.2d 918 (1981)(first 

acknowledging the emergency doctrine for warrantless entry in Nebraska).

In State v. Eberly, supra, the Supreme Court affirmed an order denying the defendant’s 

motion to suppress on the basis that the emergency doctrine justified the warrantless entry. In that 

case, officers had been dispatched to a house with information that a neighbor reported a burglary 

at the residence. Neighbors saw a man in Eberly’s back yard, heard a loud bang, and saw 2 men 

run away carrying a white bag. Upon arrival at the home, the officers could see that the back door 

had been forced open and no one responded to their announcement as police officers. The police 

entered the home to ensure that no victims or suspects remained inside. While in the house, they 

discovered a marijuana-growing operation. After securing a search warrant, they seized the 

evidence. The defendant filed a motion to suppress which the district court denied.

On appeal, the Nebraska Supreme Court upheld the district court’s determination that the 

officers had a reasonable objective basis to believe that someone inside the house may need their 

assistance because the “bang” described by the neighbor could have been a gun shot or evidence 

of an assault. To wait for a search warrant could have led to further deterioration if a person inside 

was wounded.

In State v. Plant, supra, police officers entered the Plant’s home without a warrant after 

gaining knowledge that three young children were unaccounted for and had been left unattended 

for several hours. As a result of their search, the police officers located the missing children inside 

who later made statements incriminating Plant in a pending child abuse case. Plant sought to have 

these statements suppressed as fruit of the poisonous tree. The district court refused to suppress 

the evidence and the Nebraska Supreme Court affirmed.

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In reaching its decision, the Supreme Court noted that before entering the Plant’s home, 

the police had information that three young children were unaccounted for and had been left 

unattended for several hours. They were aware that Plant had given misinformation to police 

officers regarding his and the children’s whereabouts. The officers were also familiar with a report 

to police that one of the children had suffered continual abuse by Plant and another child was in 

critical condition because of his injuries. The court concluded that all of this evidence was gathered 

from reliable sources and provided reasonable grounds to believe that an emergency existed and 

there was an immediate need for police assistance for the protection of the three children.

Unlike Eberly and Plant, at the time the officers entered Marshall’s house, they had no 

reasonable basis to believe that someone was in the house, much less that the person inside was in 

distress. The only information they had was that an elderly woman who had, or may have, health 

problems lived there. A dog was at large and the inside door was ajar. While Bomberger surmised 

that the dog may have knocked over the woman before it escaped from the house, there were no 

specific articulable facts to support that conjecture.

The State relies upon U.S. v. Quezada, 448 F.3d 1005 (8th Cir. 2006), in support of its 

argument that the police officers had reasonable grounds to believe an emergency existed. In 

Quezada, a deputy sheriff arrived at an apartment to serve the resident with a child protection 

order. Although the door to the apartment was closed, the latch was not engaged, causing the door 

to open slightly when the deputy knocked on it. Through the gap in the door, the deputy could see 

that the lights were on in the apartment and he heard a television playing. He shouted into the 

apartment several times to announce his presence, but received no response. After radioing these 

details to the dispatcher, the deputy drew his weapon and entered the apartment. The defendant 

was found inside the apartment in possession of a firearm, and further investigation revealed that 

he was a convicted felon. He was subsequently charged with being a felon in possession of a 

firearm, and moved to suppress evidence of the gun on grounds that the deputy entered the 

apartment unlawfully.

The Eighth Circuit held that the deputy was justified in entering the apartment because he 

was acting within his role as a community caretaker, and therefore, his decision to enter the 

apartment could not be judged by the same standard as if he were entering the apartment to search 

for criminal activity. Id. at 1007. Instead, the court explained, “[a] police officer may enter a 

residence without a warrant as a community caretaker where the officer has a reasonable belief 

that an emergency exists requiring his or her attention.” Id., citing Mincey v. Arizona, 437 U.S. 

385, 392-93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The court further explained that the 

“reasonable belief” standard, which is used when determining whether an officer may enter a 

residence as a community caretaker, “is a less exacting standard than probable cause.” Id., citing 

Maryland v. Buie, 494 U.S. 325, 336-37, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

Based on this framework, the court held that the deputy’s entry into the apartment “violated 

the fourth amendment only if no reasonable officer could have believed that an emergency was at 

hand.” Id. at 1008. It noted that if the apartment had appeared quiet and dark, it might have been 

reasonable to assume the tenant had simply not closed the door securely before leaving; but 

because the lights and television were on, the circumstances suggested that someone was home. 

Id. Additionally, because the deputy shouted into the apartment several times and did not receive 

a response, “a reasonable officer in the deputy’s position could conclude that someone was inside 

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but was unable to respond for some reason.” Id. Thus, the court concluded that the deputy’s 

decision to enter the apartment was reasonable and did not violate the Fourth Amendment.

The facts before us in this case differ from those of Quezada. In Quezada, the court 

specifically noted that because the lights and television were on, it was reasonable to believe 

someone was home. Here, there was no such evidence. Moreover, the Eighth Circuit has adopted 

a “community caretaker exception” for warrantless searches of residences, whereas the Nebraska 

Supreme Court has recognized such an exception only in the context of automobile searches. State 

v. Blakewell, 273 Neb. 372, 730 N.W.2d 335 (2007). See also Megan Pauline Marinos, Comment, 

Breaking and Entering or Community Caretaking? A Solution to the Overbroad Expansion of the 

Inventory Search, 22 Geo. Mason U. Civil Rights L.J. 249, 261 (2012)(discussing differences 

between the community caretaker exception and the emergency exception). In adopting the 

community caretaker exception for warrantless searches of automobiles, our Supreme Court has 

emphasized its narrow application. Id. Therefore, Quezada is not only distinquishable on its facts, 

but its analysis is inapplicable.

Applying the above principles, it was the State’s burden to prove the police officers had 

reasonable grounds to believe that a person was inside the home who was in distress and in 

immediate need of their assistance for the protection of life or property. As described by the district 

court, the evidence was scant and largely surmised. Therefore, I agree with the decision of the 

district court that the police officers’ entry into the residence was not justified by the emergency 

doctrine and violated Marshall’s Fourth Amendment rights. I therefore affirm the decision granting 

Marshall’s motion to suppress.

CONCLUSION

For the reasons explained above, the trial court’s order is affirmed and the matter is 

remanded for further proceedings.

AFFIRMED.

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