1

NOT DESIGNATED FOR PUBLICATION

No. 119,521

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

CHARLES LLOYD MOORE,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion filed May 22, 2020.

Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., HILL and BUSER, JJ.

BUSER, J.: Charles Lloyd Moore appeals his conviction in Sedgwick County 

District Court for possession of marijuana, possession of drug paraphernalia, and criminal 

use of a weapon. Moore contends the district court erred by denying his motion to 

suppress evidence, denying his motion for mistrial, and giving the jury an improper 

reasonable doubt instruction. Upon our review we find no reversible error and, therefore, 

affirm the convictions.
2

FACTUAL AND PROCEDURAL BACKGROUND

At about 6:30 a.m. on November 12, 2016, Wichita police officers responded to 

multiple reports of gunfire in the area of Seneca Street and Harry Street. Several officers 

blocked off the intersections leading to the area and walked the streets attempting to 

discover evidence of a shooting. Officer Casey Richwine was personally contacted by 

one of the reporting parties, who directed him to a block just west of Fern and Merton 

Streets. This person told the officer that at the time of the shooting someone ran toward 

Fern Street, entered a vehicle, and drove away.

As he walked west along Merton Street, Officer Richwine found shell casings on 

the roadway. In particular, the officer found five shell casings in the road in front of a 

residence on West Merton. Officer Richwine also discovered some bloody clothing on 

the curb in front of the house. Moreover, a motor vehicle parked in the driveway 

appeared to have been damaged by bullet strikes, and the house also had bullet holes. In 

Officer Richwine's opinion, based on the apparent trajectory of the bullets, he believed 

that someone had been in the street east of the residence and shot a firearm towards the 

residence. Other officers soon arrived at the scene.

Officer Brock England walked up to the porch and observed blood on the inside of 

the storm door. Officer England knocked on the front door for two to three minutes 

without any response. According to the officer:

"I knocked three times very hard and announced, 'I'm the Wichita Police 

Department,' I'm there to check their welfare. I continued to do that. And after the fourth 

and fifth attempt of me knocking and announcing like that, I then tell them I am checking 

their welfare and if I have to, I will—I will open the door by force."

Officer Richwine contacted his supervisor and discussed the results of his initial 

investigation for about two or three minutes. According to the officer, "We discussed that 
3

we probably needed to go inside the residence to check any welfare of anybody that may 

have been injured in the incident." Following this discussion, the supervisor authorized a 

forced entry into the residence to conduct a welfare check of its occupants.

Officer England began kicking the front door to force it open. He kicked the door 

about six times without success. While Officer England was kicking the door, Moore 

came to the door and told the officers he would attempt to open it. When he was 

unsuccessful, Moore told the officers that the door was now jammed, he would leave the 

residence from the back door, and he would meet them at the front of the house.

Moore left the house out the back door and met Officer Richwine at the gate for 

the privacy fence that enclosed the backyard. Officer Richwine turned Moore over to the 

custody of another officer, who stood with Moore by the gate. The officers asked Moore 

if anyone was still in the house. He responded that there was a woman in the house.

Officer Richwine, Officer England, and Sergeant Vogel went through the gate and 

into the backyard to conduct a search for a wounded gunshot victim inside the house. The 

property consisted of two structures at right angles from one another; one structure faced 

Fern Street and the other faced Merton Street. The officers first entered the building 

facing Fern Street where they found no one inside. The officers then entered the structure 

facing Merton Street through the back door.

An officer standing with Moore noticed a surveillance camera on the front porch 

and asked Moore if it was operating. Moore replied, "Well, I don't know. Maybe you can 

tell me seeing as three of your officers are already in my house." The officers later seized 

the digital video recorder attached to the camera. While the search of the house 

continued, Moore was seated in a patrol car.
4

As Officer Richwine, Officer England, and Sergeant Vogel conducted the search 

of the house for an injured occupant, the officers found Peggy Silva asleep in a bedroom. 

She was uninjured. Silva was led from the house, arrested on a bench warrant, and taken 

to jail.

Moving through the various rooms of the house, the officers observed several 

firearms in plain view. According to Officer Richwine, the firearms were the only 

evidence of wrongdoing he observed during the walkthrough. He testified that the 

officers did not any open any small containers; they were "just there to check for people." 

After the officers finished their search of the house, they left the residence. Officer 

England then went to obtain a search warrant based on the evidence of the shooting and 

the number of firearms found inside the house.

Meanwhile, Officer Richwine went to speak with Moore, who remained seated in 

the patrol car. At the beginning of the interview, Moore requested shoes and a jacket 

from the living room which the officer retrieved for him. Officer Richwine provided 

Moore with Miranda warnings in accordance with Miranda v. Arizona, 384 U.S. 436, 86 

S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Moore agreed to talk but he claimed that the officer 

did not ask him any questions. According to Officer Richwine, however, Moore admitted 

that he lived at the residence and he had been sleeping before the officers arrived. When 

Officer Richwine asked Moore why he was dressed in street clothes, Moore replied that 

he slept in street clothes. Moore also told the officer that a man owed him money and 

they had been arguing the previous evening.

Officer England obtained a search warrant for the residence. The warrant 

authorized a search of the residence for firearms and evidence related to the early 

morning shooting. Officers found and seized as evidence several types of weapons, 

including handguns and a sawed-off shotgun.
5

When he entered the house to execute the search warrant, Officer Robert Thatcher 

smelled marijuana. As he searched a cabinet in the living room, Officer Thatcher found 

water pipes or bongs typically used to smoke marijuana. He also found empty plastic 

bags, digital scales, and a metal grinder on a coffee table in the living room. Near the 

scales, Officer Thatcher found a piece of cardboard listing "nickels," "dimes," and 

"quarters." A dollar amount was written next to each word. About a half ounce of 

marijuana was found on a shelf underneath the coffee table. Also found nearby was 

another set of digital scales, glass pipes, and packaging material. A black notebook that 

listed names with amounts beside each name was also found.

A pair of shorts or pants was lying on the living room couch. Officer Thatcher 

searched inside the front pockets and found more than $6,000. The officer did not seize 

any of the drug evidence but ordered a stop to the search in order to obtain an amended 

warrant to include the drug evidence.

After Officer Thatcher obtained the amended search warrant the officers reentered 

the residence. During this search, officers seized about 35 firearms, including the sawedoff shotgun and the drug evidence previously discovered. Moore was arrested on firearm 

and drug charges and taken into custody.

On the morning of November 14, 2016, Wichita Police Detective Jeremy Miller 

interviewed Moore at the jail. Detective Miller again provided Moore with Miranda

warnings, and Moore agreed to speak with him. During the interview, Moore stated that 

someone had brought him the sawed-off shotgun to fix—presumably to replace the barrel 

to a legal length. Moore admitted that the marijuana found in the house was his but 

claimed it was for personal use. 

The State charged Moore with possession of marijuana with the intent to 

distribute, possession of drug distribution paraphernalia, criminal use of a weapon, and 
6

defacing identification marks on a firearm. The complaint was later amended to charge 

Moore with possession of marijuana with two prior convictions, rather than possession of 

marijuana with the intent to distribute. Moore waived preliminary examination on the 

amended charge.

Prior to trial, Moore filed a pro se motion to suppress evidence obtained as the 

result of an illegal search of his home. Appointed counsel later filed another motion to 

quash the search warrants and suppress evidence because of the allegedly illegal initial 

entry into Moore's residence. Following an evidentiary hearing, the district court denied 

the motions. The district judge made the following findings:

"There doesn't seem to be much of a dispute as to what the State alleged which is reports 

of shots fired in the neighborhood. We had shell casings from some rounds that were 

apparently fired in that vicinity as those shells were found in front of the home which 

would at least tie the possible discharge of those rounds to that immediate vicinity.

"Officers testified they found what appeared to be some sort of bloody clothing 

or bloody rag on the curb there. What they believed to be blood inside the front glass 

door—screen door there. And then what appeared to them to be bullet strikes or hits on 

both the car in the driveway and the home itself. Officers also testified that in knocking 

on the door they did not see a response for approximately 2-1/2 minutes.

"All that, in my opinion, would be sufficient for these officers to have at least the 

requisite level of concern to think that someone might be in the home who had been 

injured or shot requiring assistance. And enough to qualify as exigent circumstances 

under that situation."

A jury trial was held on September 25, 2017. The State voluntarily dismissed the 

charge of defacing identification marks on a firearm. At trial, Moore presented a general 

denial of the remaining criminal charges, specifically denying that he possessed any 

contraband, such as marijuana, drug paraphernalia, or illegal firearms. Moore was 

convicted of the three remaining charges.
7

Moore filed a motion for new trial and a motion for judgment of acquittal. The 

district court denied the motions. On November 17, 2017, the district court sentenced 

Moore to a controlling sentence of 26 months but granted him 12 months' probation.

Moore filed a timely appeal of his convictions.

MOTION TO SUPPRESS EVIDENCE

Moore challenges the district court's denial of his motions to suppress evidence. 

He contends that the initial entry into his residence by Wichita police officers was not 

justified by the emergency aid doctrine or, if so justified, it exceeded the permissible 

scope of the search. Consequently, Moore asserts that all evidence obtained as a result of 

the illegal initial entry should have been suppressed.

As a preliminary matter, the suppression issue was properly preserved through 

Moore's pretrial motions to suppress and timely objections to the admission of evidence 

at trial.

Appellate courts apply a mixed standard of review. The reviewing court extends 

deference to the district court's factual findings, adopting those findings if the record 

contains substantial competent evidence to support the findings. If, when making its 

factual findings, a district court is required to weigh competing evidence or assess a 

witness' credibility, those determinations are not subject to review. Substantial competent 

evidence is legal and relevant evidence sufficient to lead a reasonable person to accept a 

given conclusion. Once an appellate court has ascertained the determinative facts, the 

court then applies unlimited review of the district court's ultimate legal conclusions 

regarding suppression by applying those facts to the applicable law. See State v. Doelz, 

309 Kan. 133, 138, 432 P.3d 669 (2019).
8

The Fourth Amendment to the United States Constitution prohibits the 

government from conducting unreasonable searches and seizures. A warrantless search is 

unreasonable unless it is properly classified as one of a limited number of constitutionally

recognized exceptions. State v. Hubbard, 309 Kan. 22, 33, 430 P.3d 956 (2018). The 

government bears the burden of establishing that a warrantless search is justified by a 

valid exception to the warrant requirement. State v. Overman, 301 Kan. 704, 710, 348 

P.3d 516 (2015). Entry onto property that violates the Fourth Amendment constitutes an 

illegal search because of the potential for obtaining information protected by a legitimate 

privacy interest. Reeves v. Churchich, 484 F.3d 1244, 1258 (10th Cir. 2007).

The Fourth Amendment inquiry in this case is a narrow one. Moore only 

challenges the propriety of the Wichita police officers' initial entry into his home and the 

scope of that search. He then presumes that the subsequent searches authorized by search 

warrants were tainted by information obtained in the initial illegal entry. See State v. 

Epperson, 237 Kan. 707, 718-19, 703 P.2d 761 (1985) (evidence discovered as result of 

Fourth Amendment violation subject to exclusion as fruit of poisonous tree). Moore does 

not separately challenge the adequacy of the two search warrants, or the scope of the 

searches conducted under the authority of those warrants. As a result, those legal issues 

are not before us. For its part, the State justifies the entry into Moore's residence under 

the emergency aid doctrine. It does not provide any alternative justification for the 

officers' warrantless entry into Moore's home.

The emergency aid doctrine is a recognized exception to the warrant requirement 

under the Fourth Amendment. See State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 

(2014); State v. Ritchey, 56 Kan. App. 2d 530, 534, 432 P.3d 99 (2018). A warrantless 

search is permitted when law enforcements officers reasonably believe that a person 

needs immediate aid. Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 57 L. Ed. 2d 

290 (1978); Neighbors, 299 Kan. at 242. "'The need to protect or preserve life or avoid 

serious injury is justification for what would be otherwise illegal absent an exigency or 
9

emergency.'" Mincey, 437 U.S. at 392-93 (quoting Wayne v. United States, 318 F.2d 205, 

212 [D.C. App. 1963]).

In Kansas, the seminal emergency aid case is Neighbors, wherein our Supreme 

Court established the parameters of the exception:

"[T]he emergency aid exception must be seen as a limited exception permitting a 

warrantless search when: (1) law enforcement officers enter the premises with an 

objectively reasonable basis to believe someone inside is seriously injured or imminently 

threatened with serious injury; and (2) the manner and scope of any ensuing search once 

inside the premises is reasonable." Neighbors, 299 Kan. at 249.

On appeal, Moore claims the first part of the test adopted in Neighbors was not 

satisfied under the facts of this case. He argues that the State failed to establish the bullet 

marks in the vehicle and the house were recently made or corresponded to the shell 

casings in the street. Moore also attempts to distinguish the circumstances of his case 

from other cases applying the emergency aid doctrine in that the officers did not directly 

witness the situation warranting emergency assistance.

Moore's attempts to limit the emergency aid doctrine to situations in which the 

officers are called to a particular residence or personally witness an event requiring 

emergency assistance is not supported by caselaw. As the United States Supreme Court 

noted, the primary test is whether the officers reasonably believe that a person in the 

searched area is in need of assistance. See Mincey, 437 U.S. at 392. If an officer

reasonably believes that the health or welfare of someone might be in danger, the officer 

is justified to enter the home without a warrant. Contrary to Moore's position, the Fourth 

Amendment does not require law enforcement to tie the emergency to a particular 

residence if a wide search is reasonable under the circumstances. Kendall v. Olsen, 237 F. 

Supp. 3d 1156, 1166 (D. Utah 2017) (searching the neighborhood for a missing toddler).
10

Similarly, law enforcement officers do not need ironclad proof of the existence of 

a serious or life-threatening injury. See Michigan v. Fisher, 558 U.S. 45, 49, 130 S. Ct. 

546, 175 L. Ed. 2d 410 (2009).

"It was error for the Michigan Court of Appeals to replace that objective inquiry 

into appearances with its hindsight determination that there was in fact no emergency. It 

does not meet the needs of law enforcement or the demands of public safety to require 

officers to walk away from a situation like the one they encountered here. Only when an 

apparent threat has become an actual harm can officers rule out innocuous explanations 

for ominous circumstances. But '[t]he role of a peace officer includes preventing violence 

and restoring order, not simply rendering first aid to casualties.' It sufficed to invoke the 

emergency aid exception that it was reasonable to believe that Fisher had hurt himself 

(albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that 

Fisher was about to hurt, or had already hurt, someone else. [Citation omitted.]" Fisher, 

558 U.S. at 49.

Did the Wichita police have an objectively reasonable basis to believe someone 

inside Moore's residence was seriously injured or imminently threatened with serious 

injury? Given the totality of circumstances we believe there was an objectively 

reasonable basis for the warrantless entry. Six reasons, supported by facts in the record, 

bolster our legal conclusion.

First, Wichita police officers were dispatched to the area because several citizens 

reported they had just heard gunshots being fired in the neighborhood. As a result, this 

was an emergency, rife with danger, which required an immediate police response. One 

of the citizen complainants—an eyewitness—also personally directed Officer Richwine 

to the block near Moore's residence, where the suspected assailant entered his car and 

drove away.
11

Second, the officers recovered five shell casings in the roadway in front of 

Moore's residence. These shell casings, found in the vicinity where the gunshots were 

heard, provided confirmation of the citizen reports of hearing shots fired.

Third, bullet holes found in the vehicle parked in Moore's driveway and in his 

residence, according to Officer Richwine, provided evidence that the shooter was 

discharging a firearm from the street in front of Moore's home in the direction of Moore's 

property.

Fourth, a blood-stained piece of clothing was found on the curb near where the 

spent shell casings were found. Coupled with the report of gunshots and the presence of 

shell casings in the street, the discovery of bloody clothing on the curb nearby suggested 

that someone had been shot and injured by gunfire at this location. Blood was also found 

on the inside of the storm door at the front of Moore's residence. A reasonable inference 

based on the discovery of blood at two separate locations at the crime scene was that the 

assailant shot and wounded someone who then entered the Moore residence through the 

front door.

Fifth, Officer England knocked loudly at the front door of Moore's residence while 

identifying himself as a police officer and informing anyone inside that he was there to 

check the welfare of the occupant(s). These loud noises continued for two to three 

minutes without any response. Finally, on Officer England's fifth attempt at knocking 

loudly on the front door, the officer informed any occupant(s) that he was going to enter 

the residence by force. Following this unsuccessful attempt at contacting someone inside 

the residence, two or three minutes elapsed while Officer Richwine discussed the 

situation with his supervisor. In summary, for four to six minutes after first loudly 

knocking at the front door, the officers had been unable to contact anyone inside the 

residence.
12

Sixth, Officer England commenced to forcibly kick the front door about six times 

without any success. Only after these attempts, Moore—dressed in street clothes—finally 

responded to the commotion and attempted to open the door. When asked if anyone else 

was in the house, Moore confirmed that a woman was still inside.

Collectively, we are persuaded that these six inferences based on known facts

would prompt a reasonable law enforcement officer to investigate the probability that a 

person inside Moore's residence had just been shot, was bleeding, and needed medical 

help. Here, while other conclusions could be inferred from these circumstances, officers 

responding to the emergency involving a deadly weapon with the likelihood of an injured 

person, necessarily needed to act quickly and without the advantage of an investigation. 

See Fisher, 558 U.S. at 49 (explaining that assessment of emergency is not conducted 

with the benefit of hindsight); United States v. Holloway, 290 F.3d 1331, 1338 (11th Cir. 

2002) ("The possibility of a gunshot victim lying prostrate in the dwelling created an 

exigency necessitating immediate search.").

Moore's answering the door in response to the officers' knocking and kicking also 

did not dispel the reasonable belief that someone might be in danger in the residence. On 

the contrary, it only heightened the suspicion. Moore did not answer the door after 

several minutes of loud knocking and after Officer England's stated intention to kick the 

door down. Moore only appeared after six kicks damaged the door which made it 

apparent that the officers were forcibly entering the residence. Moreover, when he 

appeared at the door, Moore was dressed in street clothes, although he later told officers 

that he had been asleep while wearing the clothes.

In short, the long delay in Moore coming to the front door, and only after it was 

obvious that the police were forcibly coming inside the residence, added to the imperative 

to search the house to look for a wounded gunshot victim. Similarly, under these 

circumstances, Moore's exit from the residence to speak to the officers and advise them 
13

that a woman remained inside should not have dispelled the officers' reasonable belief 

that someone inside the residence may be injured. Neighbors, 299 Kan. at 251 ("[A]n 

officer may continue an emergency investigation until assured there is no one inside in 

need of assistance—particularly when the officer encounters circumstances that continue 

to raise suspicions."); United States v. Najar, 451 F.3d 710, 720 (10th Cir. 2006) 

(emergency aid exception did not require officers to accept occupant's statement that 

everything inside the residence was fine; emergency situation authorized the officers to 

check the rest of the trailer even after finding an uninjured woman).

We hold under the totality of circumstances, that the officers' entry into Moore's 

residence to conduct an emergency search for a wounded gunshot victim was reasonable 

and, therefore, justified under the emergency aid exception. See Neighbors, 299 Kan. at 

249.

Moore also challenges the scope of the officer's emergency search of the 

residence. He asserts that "the officers' actions far exceeded the scope of a proper 

emergency aid search." In particular, Moore claims that once the officers found Silva in a 

bedroom asleep and uninjured "the police's intrusion into Mr. Moore's house should have 

ended. They had no reason to believe there was anybody else in the house, and no reason 

to continue searching." The State counters that the officers "simply conducted a person 

sweep of the residence, removed Silva, and assessed whether there were any other 

individuals located within the home. Once that task was completed, they exited the 

home."

There is substantial competent evidence that the scope of the initial search was 

limited to searching for an injured person. Upon determining that no such person was in 

the residence, the officers promptly left. Since the officers were authorized to enter the 

residence without a warrant under the emergency aid exception, they could conduct a 

search tailored to ascertaining whether anyone needed medical assistance. Neighbors, 299 
14

Kan. at 251-52. However, the officers were not required to limit their search for a 

wounded gunshot victim upon finding the one woman, Silva, who Moore reported was 

inside the residence. See Najar, 451 F.3d at 720. There is no evidence that the officers 

exceeded the permissible scope of the emergency aid search by looking in additional 

areas of the residence for an injured person after they encountered Silva.

MOTION FOR MISTRIAL

Moore challenges the district court's denial of his motion for mistrial based upon 

Detective Miller's trial testimony that during an interview Moore exercised his right to 

talk to an attorney. Moore argues that this answer violated Doyle v. Ohio, 426 U.S. 610, 

96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). For its part, the State candidly concedes "the 

exchange should not have transpired," but argues that it was harmless error.

During the trial the following colloquy occurred between the prosecutor and 

Detective Miller:

"Q. Did Mr. Moore ever indicate that he wanted to talk to a lawyer when he was talking 

to you?

"A. Yes. There was a DVR at the house that I requested permission to view the contents. 

And he stated, no, and that he would like to talk to a lawyer. At that time, I ended my 

interview with him.

"Q. Understood."

Out of the presence of the jury, defense counsel sought a mistrial because the 

officer had commented on Moore's invocation of his right to an attorney in violation of 

Doyle. The district court reserved judgment on the motion for mistrial, indicating that it 

would wait until all the evidence had been admitted. The district court, however, 

promptly admonished the jurors:
15

"Any testimony or comment concerning a citizen's right to counsel is improper and not 

admissible in a criminal trial. The defense objected here at the bench to the question that 

was asked and the answer given. The defendant's objection to the question and to 

Detective Miller's answer is sustained. The jury is directed to disregard the answer. The 

jury cannot consider the implication or assertion of such constitutional right in its 

deliberations or verdicts."

At sentencing, the district court denied the motion for mistrial.

Appellate review of a district court's ruling on a motion for mistrial is limited to 

determining whether the district court abused its discretion in evaluating the motion. 

Judicial discretion is abused when it is premised on an error of law or fact or is otherwise 

arbitrary, fanciful, or unreasonable. State v. Moyer, 302 Kan. 892, 906, 360 P.3d 384 

(2015). A decision is arbitrary, fanciful, or unreasonable when no reasonable person in 

the position of the district court would have rendered the same decision. State v. Parry, 

305 Kan. 1189, 1192, 390 P.3d 879 (2017).

Under K.S.A. 22-3423(1)(c), a district court may order a mistrial if it concludes 

that prejudicial conduct renders a continuation of the trial impossible without injustice to 

either party. In evaluating a motion for mistrial, the district court must first decide if there 

is prejudicial conduct that results in a fundamental failure in the proceeding, which means 

that prejudice makes it impossible to proceed without injustice to either party. If there has 

been a fundamental failure in the proceeding, the district court must consider whether the 

damaging effect can be cured or mitigated by an admonition to the jury, a jury 

instruction, or other action. If the prejudice cannot be cured or mitigated, the district court 

must consider whether the degree of prejudice can be declared harmless. Moyer, 302 

Kan. at 906.

A Doyle violation ordinarily occurs when the State uses a criminal defendant's 

silence after being informed of his or her rights under Miranda for impeachment 
16

purposes at trial. Such impeachment violates a criminal defendant's right to due process. 

State v. Hernandez, 284 Kan. 74, Syl. ¶ 3, 159 P.3d 950 (2007). Of particular relevance 

to the case on appeal, Doyle's prohibition against impeachment with a defendant's 

invocation of constitutional rights extends to the right to counsel. See State v. Cosby, 285 

Kan. 230, 245, 169 P.3d 1128 (2007) (citing Doyle, 426 U.S. at 618).

Was this a Doyle violation? Moore never invoked his right to remain silent and 

initially conversed with Detective Miller. Only after the detective requested permission to 

look at the surveillance video did Moore invoke his constitutional right by asking to 

speak to an attorney. This situation is very similar to the circumstances in State v. 

Anthony, 282 Kan. 201, 206, 145 P.3d 1 (2006) ("This is not a case, as in Doyle, where a 

defendant was silent when first contacted by law enforcement officers. Anthony was not 

silent. When interrogated, he confessed. He never invoked his right to silence. And he 

invoked his right to counsel only after the cat was out of the bag. [Citation omitted.]"); 

see also Greer v. Miller, 483 U.S. 756, 764-65, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987) 

(holding that impeachment of a defendant with evidence that defendant invoked 

constitutional rights is not a Doyle violation if the court sustains the objection to the 

impeachment; instead, the violation is analyzed as prosecutorial misconduct).

Nevertheless, although the prosecutor had no valid reason for eliciting the 

information from Detective Miller, the prosecutor prompted the detective's improper 

testimony. Moreover, the detective's response had no material purpose in proving 

Moore's guilt of the crimes with which he was charged. See State v. Elnicki, No. 110,516, 

2015 WL 1882098, at *5 n.1 (Kan. App. 2015) (unpublished opinion) ("The prosecutor 

seems to have elicited the information with the aim of impairing the credibility of the 

witnesses, implying their reliance on legal representation equates to untrustworthiness."). 

These facts and circumstances—and the State's concession of error—persuade us that the 

prosecutor's question and the detective's response were improper.
17

The district court's decision not to grant Moore's motion for mistrial was not error 

if the Doyle violation is deemed harmless. See State v. Fisher, 304 Kan. 242, 248, 373 

P.3d 781 (2016). We are persuaded that the detective's comment did not deprive Moore 

of a fair trial under the unique circumstances of this case. During the interview with 

Detective Miller, Moore freely admitted to possessing the firearms and smoking 

marijuana—admissions he contradicted at trial by denying possession of the firearms or 

drugs. Any Doyle violation had no effect on the admissibility of Moore's incriminating 

statements to Miller.

Additionally, Detective Miller's comment regarding Moore's invocation of his 

right to counsel was made in the context of discussing how the interview ended, shortly 

after Detective Miller requested Moore's permission to view the surveillance video. 

While the jury may have surmised that Moore's invocation of the right to counsel 

suggested guilt related to conduct depicted on the surveillance video, the video was not 

offered in evidence by the State and the prosecutor did not argue the point. Lastly, the 

district court strongly admonished the jury not to consider Moore's invocation of the right 

to counsel in its deliberations. It is well-settled Kansas law that an appellate court 

generally presumes that the jury followed the admonishment of the district court. See 

State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 (2010).

We hold that Detective Miller's comment on Moore's invocation of his right to 

counsel had a negligible effect, if any, on the jury's deliberations. The error was harmless 

beyond a reasonable doubt, and the district court did not abuse its discretion in refusing to 

grant Moore's motion for mistrial. See Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. 

Ct. 1710, 123 L. Ed. 2d 353 (1993) (applying constitutional harmless error test to Doyle

violation).
18

BURDEN OF PROOF INSTRUCTION

Moore's final issue challenges the propriety of the district court's burden-of-proof 

jury instruction. He contends that the district court's instruction infringed on the jury's 

exercise of its power of nullification.

Moore objected at trial to the burden-of-proof instruction proposed by the district 

court. Accordingly, Moore's objection was properly preserved, and our court must 

consider whether the instruction, together with the other instructions, fairly stated the 

applicable law or whether the instructions caused juror confusion. See State v. Butler, 307 

Kan. 831, 843, 416 P.3d 116 (2018). Since the instruction involves the burden of proof, 

any error is structural and may not be deemed harmless. See Sullivan v. Louisiana, 508 

U.S. 275, 280, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993); Miller v. State, 298 Kan. 921, 

923, 318 P.3d 155 (2014) ("[H]armless error analysis does not apply to a constitutionally 

deficient reasonable doubt instruction.").

The challenged jury instruction, Instruction No. 6, provided:

"The State has the burden to prove Mr. Moore is guilty. Mr. Moore is not 

required to prove he is not guilty. You must presume that Mr. Moore is not guilty unless 

you are convinced from the evidence that he is guilty.

"The test you must use in determining whether Mr. Moore is guilty or not guilty 

is this: If you have a reasonable doubt as to the truth of any of the claims required to be 

proved by the State, you must find Mr. Moore not guilty. If you have no reasonable doubt 

as to the truth of each of the claims required to be proved by the State, you should find 

Mr. Moore guilty."

As Moore points out, the Kansas Supreme Court has recognized that the jury has 

the power of jury nullification. See State v. Osburn, 211 Kan. 248, 255, 505 P.2d 742 

(1973). It is clear error to instruct a jury that if it has no reasonable doubt about the 
19

defendant's guilt, then the jury "'will enter a verdict of guilty.'" State v. Smith-Parker, 301 

Kan. 132, Syl. ¶ 6, 340 P.3d 485 (2014). But our court has consistently held that using the 

word "should" in the burden of proof instruction is not the same as using a prohibited 

imperative like "must" or "will." See, e.g., State v. White, 53 Kan. App. 2d 44, 53-54, 384 

P.3d 13 (2016); State v. Allen, 52 Kan. App. 2d 729, 735, 372 P.3d 432 (2016). By using 

the word "should" the district court appropriately maintained a balance between 

encouraging jury nullification and prohibiting it.

Lastly, the burden-of-proof instruction used here substantially reflects the 

language used in the pattern instruction found in PIK Crim. 4th 51.010. Our Supreme 

Court "'strongly recommend[s] the use of PIK instructions, which knowledgeable 

committees develop to bring accuracy, clarity, and uniformity to instructions.' [Citation 

omitted.]" Butler, 307 Kan. at 847.

Moore has not provided a compelling argument that our court has not already 

previously considered and rejected. We are persuaded that the burden-of-proof 

instruction, together with the other jury instructions, fairly stated the applicable law and 

did not cause juror confusion. See 307 Kan. at 843.

Affirmed.

* * *

ATCHESON, J., concurring in part and dissenting in part: The emergency aid 

doctrine permits law enforcement officers (and other government agents) to search places 

without warrants, as an exception to the Fourth Amendment to the United States 

Constitution, when they have objective reasons to believe someone there is in serious 

peril. In this case, however, Wichita police officers no longer had such an objective belief 

when they stormed into Charles Lloyd Moore's home. The Sedgwick County District 

Court should have granted Moore's motion to suppress the evidence of illegal activity the 
20

officers found in his house. Although that result would have seriously impeded and 

perhaps prevented the successful prosecution of Moore, the Fourth Amendment requires 

suppression of impermissibly seized evidence in cases like these to deter law enforcement 

officers from invading the constitutional rights—and the homes—of innocent citizens. 

For that reason, I respectfully dissent from the majority's decision affirming the district 

court's ruling.

Before detailing why the district court and the majority have misapplied the Fourth 

Amendment, I mention what they have gotten right. The prosecutor improperly 

questioned a detective during the trial in a way that disclosed to the jurors Moore had 

asked to speak with a lawyer after the detective informed him of that right as part of the 

standard Miranda warnings given a suspect at the start of a custodial interrogation. See 

Wainwright v. Greenfield, 474 U.S. 284, 295 & n.13, 106 S. Ct. 634, 88 L. Ed. 2d 623 

(1986); Jones v. Bagley, 696 F.3d 475, 484-85 (6th Cir. 2012). But the question and 

answer did not deprive Moore of a fair trial, given the evidence against him and the 

district court's remedial instruction to the jurors. I, therefore, agree the error was harmless 

and the district court properly denied Moore's motion for a mistrial. I also agree the jury 

instruction on the State's burden of proof was proper, as this court has repeatedly held. I 

join in that part of the majority's opinion, as well.

Fourth Amendment Principles

The Fourth Amendment prohibits unreasonable government searches and seizures 

and typically requires government agents to obtain a warrant from a judge identifying the 

place to be searched and describing the things that may be seized. The text of the Fourth 

Amendment identifies "houses" as protected places. The framers favored no other 

location that way. And the courts have consistently recognized the protections of the 

Fourth Amendment serve their quintessential purpose at the door to a person's home.

Florida v. Jardines, 569 U.S. 1, 6, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013) ("At the 
21

Amendment's 'very core' stands 'the right of a man to retreat into his own home and there 

be free from unreasonable governmental intrusion.'") (quoting Silverman v. United States, 

365 U.S. 505, 511, 81 S. Ct. 679, 5 L. Ed. 2d 734 [1961]); State v. Dugan, 47 Kan. App. 

2d 582, 588, 276 P.3d 819 (2012) ("The rights secured in the Fourth Amendment are at 

their zenith when government agents attempt to enter a person's home."). I dispense with a 

recounting of the history of the Fourth Amendment and the abuses that prompted its 

inclusion in the Bill of Rights. See Payton v. New York, 445 U.S. 573, 583-85 & n.21, 

100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (historical underpinning of Fourth Amendment 

protections for homes); Stanford v. Texas, 379 U.S. 476, 482, 85 S. Ct. 506, 13 L. Ed. 2d 

431 (1965) (historical antipathy toward both the use of writs of assistance in the Colonies 

and the use of general warrants in England as animating inclusion of the Fourth 

Amendment in the Bill of Rights).

Warrantless searches of dwellings are considered presumptively unconstitutional.

Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006). 

But the courts have recognized limited exceptions to the warrant requirement, including 

consent to search, probable cause combined with exigent circumstances, and the 

emergency aid doctrine. State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). 

The emergency aid exception stands on a somewhat different legal footing from exigent 

circumstances more generally. Those exigent circumstances entail conventional law 

enforcement functions—taking suspected criminals into custody or securing evidence of

crimes—where the delay to secure a warrant would thwart their accomplishment. The 

officers must have probable cause to believe the person seized has committed a crime or 

the place searched will yield evidence. The emergency aid exception neither implicates 

that kind of law enforcement action nor requires probable cause. Brigham City, 547 U.S. 

at 403; Hill v. Walsh, 884 F.3d 16, 23 (1st Cir. 2018). The emergency assistance 

exception applies when government agents enter a dwelling or other private place to help 

a person in serious peril. The agents must have a reasonable factual basis to believe a
22

potentially life-threatening emergency is imminent or ongoing, thus requiring immediate 

entry of a specific place to render help. Neighbors, 299 Kan. 234, Syl. ¶ 4. 

As with much else in Fourth Amendment law, the reasonableness of the agents' 

determination rests on the totality of the circumstances. See Missouri v. McNeely, 569 

U.S. 141, 168, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) (Kennedy, J., concurring) 

(noting applicability of warrant exceptions including emergency aid doctrine turn on 

totality of circumstances); Brigham City, 547 U.S. at 406-07 (court examines 

circumstances surrounding officers' entry in applying emergency aid doctrine); United 

States v. Timmann, 741 F.3d 1170, 1181 (11th Cir. 2013). And the circumstances must 

support an objectively reasonable conclusion that an emergency is at hand, so an officer's 

subjective belief alone is legally insufficient. Brigham City, 547 U.S. at 404-05; 

Neighbors, 299 Kan. at 243. The intrusion must be confined to the purpose of the 

exception—rendering immediate aid in an emergency. Government agents may not turn

an ostensible emergency into an opportunity to search for evidence. They must stand 

down as soon as they have rendered any necessary aid or the events unfold to reveal the 

absence of an actual emergency. 299 Kan. at 252; State v. Edmonds, 211 N.J. 117, 134, 

47 A.3d 737 (2012) (In applying the emergency aid doctrine, the court recognized: 

"When the exigency that justifies immediate action dissipates, the rationale for searching 

without a warrant is no longer present."). 

Before turning to the facts here, I explain what the majority ignores: The reason 

courts typically suppress evidence when government agents violate the Fourth 

Amendment. The exclusionary rule—barring the government's use of unconstitutionally 

obtained evidence in a criminal prosecution—deters those agents from engaging in and 

repeating like violations, thereby modifying their conduct and practices to conform to the 

requirements of the Fourth Amendment. See United States v. Leon, 468 U.S. 897, 908-09, 

104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) ("The Court has, to be sure, not seriously 

questioned, 'in the absence of a more efficacious sanction, the continued application of 
23

the rule to suppress evidence from the [prosecution's] case where a Fourth Amendment 

violation has been substantial and deliberate.'"). The agents understand they cannot 

advance a criminal prosecution by violating the Fourth Amendment because any 

evidence they obtain will be unusable for that purpose. So they presumably will not 

engage in that unconstitutional behavior at all, thus preserving the Fourth Amendment 

rights of innocent citizens who otherwise would be victims of impermissible searches and 

seizures. 

Only by exacting a penalty against the government in criminal prosecutions can 

those rights be meaningfully protected for everyone. Herring v. United States, 555 U.S. 

135, 139-40, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (The exclusionary rule is 

"'designed to safeguard Fourth Amendment rights generally through its deterrent effect.'") 

(quoting United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 38 L. Ed. 2d 561 

[1974]). Since illegal searches of innocent citizens' homes turn up no contraband or other 

evidence of crimes, there is no prosecution and nothing to suppress and, in turn, no 

efficacious remedy to independently punish those particular constitutional violations. The 

necessary cost of protecting every citizen's Fourth Amendment rights through the 

exclusionary rule lies in impeding and often effectively precluding the successful 

prosecution of a guilty defendant when his or her rights have been violated. Justice 

Robert Jackson explained the utility of the exclusionary rule and its seeming paradox 

nearly 75 years ago:

"But the right to be secure against searches and seizures is one of the most 

difficult to protect. Since the officers are themselves the chief invaders, there is no 

enforcement outside of court.

"Only occasional and more flagrant abuses come to the attention of the courts, 

and then only those where the search and seizure yields incriminating evidence and the 

defendant is at least sufficiently compromised to be indicted. If the officers raid a home, 

an office, or stop and search an automobile but find nothing incriminating, this invasion 

of the personal liberty of the innocent too often finds no practical redress. . . . 
24

"Courts can protect the innocent against such invasions indirectly and through 

the medium of excluding evidence obtained against those who frequently are guilty. 

Federal courts have used this method of enforcement of the Amendment, in spite of its 

unfortunate consequences on law enforcement." Brinegar v. United States, 338 U.S. 160, 

181, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949) (Jackson, J., dissenting).

See also Elkins v. United States, 364 U.S. 206, 217, 80 S. Ct. 1437, 4 L. Ed. 2d 

1669 (1960) (Elkins majority opinion quotes this passage of Justice Jackson's Brinegar 

dissent as aptly encapsulating the operation of the exclusionary rule). In short, without 

the exclusionary rule, government agents would have little or no tangible incentive to 

abide by the constitutional restrictions on their conduct outlined in the Fourth 

Amendment. We have struck a constitutional balance in which the benefit of protecting 

everyone's freedom from unreasonable government searches and seizures justifies that 

cost. And we should neither lose sight of that balance nor silently recast the protections of 

the Fourth Amendment in a given case because the constable's constitutional blunder has 

yielded a trove of guns and drugs.

Standard of Review and Factual Record 

In reviewing a ruling on a motion to suppress, we afford deference to the district 

court's resolution of disputed facts but not its ultimate legal conclusion. The State must 

prove a search or seizure to be constitutional by a preponderance of the evidence. State v. 

Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016). I see no material conflicts in the 

evidence bearing on the motion to suppress, so the issue turns on a narrow question of 

law: Did the totality of the circumstances present an objectively reasonable basis for the 

Wichita police officers to enter Moore's home under the emergency aid doctrine? See 304 

Kan. at 274 (when material facts undisputed, issue presents question of law); State v. 

Bennett, 51 Kan. App. 2d 356, 361, 347 P.3d 229 (2015). 
25

The evidence at the suppression hearing, presented principally through the 

testimony of three Wichita police officers and Moore, is basically consistent on the 

essential facts. I summarize those facts:

The Wichita police received calls from concerned citizens about 6:30 a.m. about 

shots fired in a neighborhood in the southwest part of the city. A patrol officer responded 

and found five shell casings in the street in front of Moore's house. He identified a bullet 

hole in the house and two in a car parked in the driveway. A resident of the neighborhood 

said she saw someone run from the vicinity of the shots, jump in a van, and drive off. 

Other officers quickly arrived, setting up a perimeter around Moore's house. They 

promptly found what was variously described as a cloth, rag, or T-shirt with blood on it at 

the curb. An officer saw blood on the front storm door of Moore's house. The hearing 

transcript does not include any further description of the blood on the door.

The officers inferred—entirely reasonably—that a person shot at Moore's house 

and car and then fled. They believed, equally reasonably, that someone had been injured, 

accounting for the bloody cloth or shirt and the appearance of the door. So they were 

concerned that someone now inside Moore's house might have been shot and would, 

therefore, be in need of medical assistance. Again, that's a reasonable assumption given 

those circumstances. An officer proceeded to knock loudly on the front door and 

announce he was with the Wichita police and need to "check the welfare" of anyone 

inside. Having received no response from inside, one of the officers then unsuccessfully 

attempted to kick open the front door. Reasonable still. As the testimony at the 

suppression hearing shows, the officers were in search of an injured crime victim needing 

help—an objective aligned with the emergency aid doctrine. They were neither in pursuit 

of a criminal suspect nor looking for incriminating evidence. And they weren't 

intervening to thwart a crime in progress. 
26

After several minutes, Moore came to the front door. An officer asked him to open 

the door. Moore explained he couldn't because the officers had damaged it, so it was 

jammed shut. He said nothing about needing medical assistance. Moore either offered to 

come out the back door to meet the officers in front of the house or was asked to do so 

and agreed. I impute no particular legal significance to those differing descriptions. Either 

way, Moore went to the front of the house. The factual circumstances then dramatically 

shifted away from the officers' inference of an emergency. Moore rather plainly had no 

gunshot wounds or other injuries. An officer asked if anyone remained in the house. 

Moore replied a woman was inside. By all accounts, he responded without conveying any 

sense of alarm about her. Nobody inquired about her condition. Three officers instead 

immediately rushed to the backdoor, entered, and went room to room looking for an 

injured victim of a shooting. They found Moore's girlfriend—without injury—in the 

bedroom. In getting to the bedroom, they saw a number of firearms. The officers 

withdrew from the house, escorting Moore's girlfriend out. The officers then sequentially 

obtained two search warrants, the first for firearms and ammunition and the second for 

illegal drugs and associated contraband or other evidence. The search teams found lots of 

guns, drugs, and other contraband. 

At the suppression hearing, one of the officers testified that a police department 

policy required a "security sweep" of the interior of the house to check for injured 

persons, since shots apparently had been fired. None of the witnesses elaborated on the 

policy, and a written policy was not produced at the hearing. 

The State has consistently relied solely on the emergency aid doctrine to justify 

the entry into Moore's house and the initial search. The facts lend themselves to no other 

exception to the Fourth Amendment's warrant requirement. The officers did not purport 

to be acting under exigent circumstances tied to a conventional law enforcement function, 

such as hot pursuit of a wanted felon or apprehension of an armed suspect posing an 

immediate danger. Likewise, Moore indisputably did not consent to a search of his home, 
27

thereby obviating the need for a warrant. In addition to challenging the officers' initial 

entry, Moore has argued the way they searched for injured victims was constitutionally 

unreasonable. See Tennessee v. Garner, 471 U.S. 1, 8, 105 S. Ct. 1694, 85 L. Ed. 2d 1 

(1985) (A search or seizure lawful at its inception may violate the Fourth Amendment if 

the government agents act unreasonably in the way they carry it out.); United States v. 

Edwards, 666 F.3d 877, 883-84 (4th Cir. 2011). The record doesn't support his claim 

about the manner of the search itself. Moore has not asserted additional challenges to the 

searches the officers conducted after obtaining the warrants.

Principles Applied to the Facts

As I have indicated, the suppression issue rises and falls on whether the 

emergency aid doctrine covers the officers' backdoor entry into Moore's home after he 

emerged from there unharmed to talk with officers at the front door. At that juncture, the 

officers were trying to determine if an apparent attack on the house had left any injured 

victims inside. Moore's appearance strongly dispelled that concern. He was uninjured and 

did not ask the officers for help with someone else. Nor had he made a 911 call for 

medical assistance. The circumstances no longer conveyed a dire urgency. And an 

immediate invasion of the home was constitutionally unreasonable, since the officers at 

that time considered Moore to be a crime victim. The officer coordinating the tactical law 

enforcement presence could have easily and quickly asked Moore if the woman in the 

house needed medical help. That would have been both commonsensical and 

constitutionally reasonable. Even if the officers doubted a response from Moore that his 

girlfriend was fine, they could have asked to speak with her. Equivocation or apparent 

dissembling from Moore might have rekindled a constitutionally reasonable basis to enter 

the home under the emergency aid doctrine. 

Moreover, one of the officers represented at the suppression hearing that they 

entered Moore's home based on a departmental policy. A law enforcement policy or 
28

routine practice cannot justify a warrantless entry into a home that otherwise violates the 

Fourth Amendment in light of the factual circumstances. See State v. White, 44 Kan. 

App. 2d 960, 971, 241 P.3d 591 (2010) (officer's practice of patting down driver for 

weapons in every traffic stop even absent reasonable suspicion violates Fourth 

Amendment); State v. Burks, 15 Kan. App. 2d 87, 94, 803 P.2d 587 (1990) ("standard 

procedure" of patting-down hitchhikers without regard to reasonable suspicion violates 

Fourth Amendment); United States v. Taylor, 666 F.3d 406, 409 (6th Cir. 2012) (law 

enforcement officers cannot constitutionally justify protective sweep of residence upon 

executing arrest warrant based on "their standard procedure" and must rely on 

"'articulable facts'" establishing reasonable belief person there posed danger to them); 

United States v. Williams, 577 F.3d 878, 881 n.3 (8th Cir. 2009) (protective sweep of 

home cannot be based on "'standard procedure'"). A policy or procedure ostensibly 

permitting government agents to search homes or other places cannot substitute for 

inadequate factual circumstances to salvage a constitutionally infirm incursion. That 

would be functionally no different from a forbidden general warrant. 

Here, the dissipation of the circumstances inferentially supporting the emergency 

aid doctrine required the officers to cease their attempt to enter the home of an apparent 

crime victim who obviously had no injuries. The officers' charge through the back door 

violated the Fourth Amendment. In short, objective reasonableness under the emergency 

aid doctrine creates no irrevocable threshold that once crossed cannot be undone by new 

facts in the evolving totality of the circumstances. See Edmonds, 211 N.J. at 134. And 

apparent crime victims who explain to officers at their front doors that they and their 

guests are fine should not then be subject to home invasions without some substantially 

greater factual justification. 

The circumstances here are unlike those in the leading United States Supreme 

Court cases shaping the present iteration of the emergency aid doctrine. Michigan v. 

Fisher, 558 U.S. 45, 130 S. Ct. 546, 175 L. Ed. 2d 410 (2009); Brigham City, 547 U.S. 
29

398. In Fisher, as officers responding to a disturbance call approached a house, they saw 

a pickup with significant damage to the front end that corresponded to damage to a fence. 

The house had three freshly broken windows. There was blood in the truck and on a door 

to the house. The backdoor was locked, and the front door barricaded. The officers saw a 

man with a bloody cut to his hand standing in the living room, screaming and throwing 

things. They could not determine if he was throwing the objects at someone else. The

Court found those circumstances supported a warrantless entry based on the emergency 

aid doctrine. 558 U.S. at 48. Similarly, in Brigham City, police officers responded to call 

about a loud party at a residence in the middle of the night. On approaching the house, 

the officers saw four adults attempting to restrain a juvenile, who then broke free and 

punched one of the adults. The adult was spitting up blood, and the physical 

confrontation showed no signs of ending. The Court found the emergency aid doctrine 

supported officers' warrantless entry of the house both to assist the injured adult and to 

prevent further injuries. 547 U.S. at 406. Those cases do not, of course, establish the 

constitutional threshold required to satisfy the emergency aid doctrine, but they are 

illustrative of sufficient circumstances and contrast to the slender inferences, undone by 

Moore's appearance, at play here. 

Closer to the line and closer to home is this court's recent opinion in State v. 

Fisher, 57 Kan. App. 2d 460, 453 P.3d 359 (2019), applying the emergency aid doctrine 

to another intervention by the Wichita police. A woman identifying herself as Teresa 

placed a 911 call saying a person had been shot at an address she provided. Several 

officers converged on the house at the address. They saw a man arguing with two women 

in front of the house. As the officers pulled up, the man ran, and at least several officers 

went after him. Another officer asked the women if they were hurt. They said they were 

not. The officer did not tarry to find out if either of them happened to be Teresa (one of 

them was), if they lived there, or if they were aware of someone having been shot. He and 

another officer entered the house apparently without having to force their way in. Their 

search revealed no gunshot victim, but they found Fisher unharmed in the basement with 
30

marijuana plants in plain view. The panel (on which I sat) upheld the warrantless entry 

and search under the emergency aid doctrine. 57 Kan. App. 2d at 467-68. 

There are several material differences between this case and Fisher. The initial 

call to the police in that case referred specifically to the victim of a gunshot injury being 

inside a house at a given address. That was the identified emergency. The man fleeing the 

scene enhanced the likelihood of something being amiss. See State v. Phillips, 295 Kan. 

929, 947-48, 287 P.3d 245 (2012) (flight from crime scene or law enforcement officers 

may be circumstantial evidence of guilt). The officers had no reason to immediately 

connect the women to the house, although they had been talking to the man. And after 

determining neither woman was the gunshot victim, the officers had no obligation to play 

20 questions with them to figure out what, if anything, they had to do with the 911 call. 

Here, the initial call was of shots fired in a neighborhood. The officers inferred there 

might be someone injured in Moore's house—an inference dispelled by Moore's 

appearance and his failure to request medical assistance for himself or his girlfriend. The 

officers should have recalibrated their assessment of the circumstances and asked Moore 

about his girlfriend's condition. Their entry into his home based either on the 

circumstances as they were or on the departmental policy was constitutionally 

unreasonable, a result consistent with Fisher.

As the suppression issue has been framed for us, the seizures of the guns, drugs, 

and other contraband from Moore's home were impermissibly tainted by the wrongful 

initial entry. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. 

Ed. 2d 441 (1963) (evidence suppressed as "'fruit of the poisonous tree'" when directly 

derivative of violation of defendant's Fourth Amendment rights). They should have been 

excluded as evidence against Moore. Their admission during the jury trial amounted to 

reversible error.
31

The Majority's Approach

The majority averts that result in several unpersuasive ways. For example, the 

majority announces "[s]ix reasons . . . [that] bolster our legal conclusion," as if there 

were multiple points of law supporting the entry of Moore's home. See slip op. at 10. 

Instead, the majority simply fractures the totality of the circumstances into pieces and 

offers each as an independent basis justifying the officers' actions. The first five 

collectively do create a reasoned belief the victim of a gunshot wound might be in the 

house. But the sixth—Moore's appearance unharmed at the front of the house—offers an 

entirely contrary picture, negating the inference. The officers, of course, didn't ask Moore 

if his girlfriend was hurt. And without anything in his comportment to suggest she was in 

peril, the officers stormed in. The majority, in conclusory fashion, pronounces the 

circumstances good enough.

Similarly, the majority recites at length the district court's ruling, apparently to be 

taken as a legally sound backstop. In that part of its bench ruling, the district court 

outlined the factual circumstances up to the officers knocking on Moore's door without an 

immediate response. The district court pronounced those facts sufficient to justify a 

warrantless entry under the emergency aid doctrine. But, of course, the totality of the 

circumstances was markedly different. Although the district court went on to mention 

that Moore came out and spoke to the officers, it attributes no significance to Moore's 

appearance and never accounts for that part of the circumstances in its legal analysis.

Finally, the majority wrests observations about the emergency aid doctrine in 

several court opinions from their factual foundations to argue they support its desired 

outcome in this case on very different facts. That sort of uncoupling of factual 

underpinnings from isolated legal pronouncements can distort the ordered process of 

reasoning by analogy embedded in judicial decision-making. I have outlined that danger 

elsewhere and do not repeat the full discussion here. See State v. Pollman, 56 Kan. App. 
32

2d 1015, 1041-42, 1048-51, 441 P.3d 511 (Atcheson, J., dissenting), rev. granted 310 

Kan. 1068 (2019). The danger is redoubled when the proper legal outcome explicitly 

depends upon the totality of case-specific circumstances. So the majority quotes at some 

length from the United States Supreme Court's decision in Fisher—a discussion the 

Court itself ties to those facts without reiterating them—and pronounces the discussion 

precedent for affirming in this case. It isn't.

The majority similarly offers a brief parenthetical derived from United States v. 

Najar, 451 F.3d 710, 720 (10th Cir. 2006), without considering the facts of that case or 

explaining why that observation should direct the outcome here despite the marked 

factual differences between that case and this one. The majority suggests Najar stands for 

the legal proposition that the emergency aid doctrine permits or requires government 

agents to disbelieve what someone on the premises of the purported emergency tells 

them. Well, no. The doctrine has no such a built-in legal corollary, and the Tenth Circuit 

does not suggest otherwise. The court found that the totality of the circumstances in that 

case readily supported the officers' conclusion that Najar was lying to them. 451 F.3d at 

720. 

In that case, a 911 operator received a call with an immediate hang-up at about 2 

a.m. Consistent with the protocol for a hang-up, the operator called the number to inquire 

if anyone needed assistance. The call was answered followed by another hang-up. The 

operator placed three more calls with the same result and then requested the police go to 

the address. When the officers arrived at the mobile home, they saw and heard someone 

moving around inside. But their increasingly loud and vigorous knocking and 

identification of themselves as police officers went unheeded. A police sergeant arrived. 

All three continued trying to get the occupant to respond. About half an hour after the 

first officers got there, Najar opened the door. He told the officers he was there alone and 

had not called 911. As the court found, the officers, of course, had good reason to 

disbelieve Najar, and the repeated responses to calls from the 911 dispatcher strongly 
33

suggested someone in danger but unable to speak. 451 F.3d at 720. (A benign response 

might have entailed an answer with an explanation that the initial call to 911was a 

mistake and everything is okay.) The officers entered without Najar's consent and found 

both an uninjured woman in the bedroom and a shotgun leaning against a wall in the 

living room area. As a convicted felon, Najar could not lawfully possess a firearm.

The court's determination that the officers properly disregarded Najar's 

representations to them rested entirely on the facts of that case showing him to be 

dissembling. But the court did not distill that factual conclusion into some general rule 

governing the emergency aid doctrine. Here, the constellation of facts known to the 

officers when they actually entered Moore's house didn't come close to approximating 

those in Najar. 

The majority also relies on a quote from Neighbors enunciating as a general 

proposition: "[A]n officer may continue an emergency investigation until assured there is 

no one inside in need of assistance—particularly when the officer encounters 

circumstances that continue to raise suspicions." See Neighbors, 299 Kan. at 251. The 

Neighbors court determined the facts of that case didn't fit the proposition. Four police 

officers entered an apartment after the landlord reported finding someone other than the 

tenant unconscious and unresponsive in the living room. The officers aroused the 

individual (Neighbors) and determined he was in no immediate distress. In the meantime, 

two narcotics officers arrived and eventually searched Neighbors. They found a small bag 

of methamphetamine he had concealed in his underwear. The court held that the 

emergency aid doctrine justified the officers' entry into the apartment but not their 

continued stay or the search of Neighbors after they determined he was not in any peril. 

299 Kan. at 249. There, the officers dispelled the emergency after their entry. Here, the 

factual circumstances dispelled the emergency before the officers entered Moore's home, 

and they "encounter[ed]" nothing that "continue[d] to raise suspicions." See 299 Kan. at 

251. To the contrary, Moore's physical presence and comportment did just the opposite.
34

Conclusion

The Fourth Amendment extends an austere and fundamental protection to the 

privacy of our homes. Government agents may not cross the threshold of that protection 

or of a home without a judicially approved warrant or ample good cause. Crime victims 

do not surrender the constitutional sanctity of their homes simply because government 

agents may have assumed them to be in peril when the facts unfold to dispel that 

assumption. The courts have a duty to stand guard against government actions 

encroaching upon fundamental rights. In service of that duty, I would find a Fourth 

Amendment violation in this case and exclude the evidence seized from Moore's home.