FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 04-10681

v. D.C. No. 

W CR-04-00054-LKK ILLIE RUSSELL, JR., a/k/a Wild

Bill, OPINION

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, Senior Judge, Presiding

Argued and Submitted

November 15, 2005—San Francisco, California

Filed January 30, 2006

Before: Diarmuid F. O’Scannlain, Sidney R. Thomas, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge O’Scannlain;

Partial Concurrence and Partial Dissent by Judge Thomas

1209
COUNSEL

Quin Denvir, Federal Defender, Sacramento, California,

argued the cause and was on the briefs for the appellant. 

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

OPINION

O’SCANNLAIN, Circuit Judge: 

This case requires us to consider whether the emergency

doctrine or implied consent can support a warrantless search

of a home on suspicion that a 9-1-1 caller or lurking predator

was inside. 

I

On Saturday, December 23, 2003, Willie Russell, Jr.,

placed two calls to the Sacramento Sheriff’s Office (SSO)

1212 UNITED STATES v. RUSSELL
9-1-1 dispatcher. In the first emergency call, Russell identified himself as “Gregory Hines,” and explained to the operator that a gun went off and hit him in the foot, that he was

wounded and in pain, and that he wanted the dispatcher to call

an ambulance. The transcript of the first call shows that the

Fire Dispatcher and the SSO Dispatcher were confused as to

whether the caller had been shot, or had shot himself. After

Russell’s call was disconnected, the SSO Dispatcher said to

the Fire Dispatcher “[the caller] didn’t really confirm that he

shot himself. He just said a ‘gun went off.’ ” Each patrol car

contained a mounted computer system and monitor, known as

a “Mobile Data Terminal,” which allows field officers to

receive information pertinent to their calls through a “Computer Aided Dispatch,” or CAD, which updates text provided

by 9-1-1 dispatchers on screens in the police officers’ cars. In

this case, the CAD Event Report displayed to responding officers: “male stated gun went off and he shot [sic] in foot.” 

Russell called back and spoke to a second emergency dispatcher, giving his real name and address and stating, “I shot

myself in the foot.” Over the course of the phone call, Russell

explained that he was “moving” the gun out of his bedroom

closet when it went off. When asked whether he knew where

the gun was currently, Russell first stated, “I don’t know,”

then stated that he “left [the gun] upstairs somewhere. I

dropped it on top of stuff on the floor.” Russell also stated

that “my girlfriend is going to kill me.” Police were aware of

Russell’s comments; the CAD Event Report displayed: “[Willie is] sayin that his gf [girlfriend] is goin to kill him when she

finds out what he did . . . gf not @ resd rite now [sic].” 

The dispatchers asked whether Russell was alone, and he

twice responded that nobody else was present. Again, the

CAD Event Report reported to the responding officers that

“Willie Russell . . . sed [sic] he is home alone.” Later in the

phone call, the dispatcher apparently overheard two unidentified female voices and asked whether there were other people

there at that point, but Russell did not respond. The transcript

UNITED STATES v. RUSSELL 1213
of the phone call shows that female voices could be heard

asking about the gun and whether Russell planned to give it

to the police. An unidentified female voice asked: “Where’s

the gun at? Are you going to give ‘em the gun?” The CAD

Event Report informed the officers that the dispatcher “heard

male & fem voice in bkgrnd askn what was goin on [sic].” 

Russell told the dispatchers that he had opened the front

door for the police: 

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

SSO: You’re at the front door. 

Russell: Yes, I crawled to the front door. 

SSO: Okay, is the door unlocked? 

Russell: Yes, I opened the door for them. 

SSO: Okay, the door is open? 

Russell: Please don’t make me suffer. 

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

Russell: The door is open. 

After his first call, the emergency dispatchers alerted

police, who initially anticipated finding an injured man named

“Gregory Hines,” the pseudonym Russell supplied to the first

emergency dispatcher. While en route the officers received

updated information that a second man, “Willie Russell,” was

injured. As the officers neared Russell’s house, the dispatcher

informed them that the injured man did not know where the

gun could be located, and that the injured man had opened the

door for the police. Neither the police nor the emergency dis1214 UNITED STATES v. RUSSELL
patchers were aware that Willie Russell and Gregory Hines

were one and the same.1

Deputy Summer Elliott arrived near the scene first but

waited outside the cul-de-sac entrance to the street until other

units arrived. When asked why she did not enter the neighborhood herself, Deputy Elliott responded that “it is not safe to

do so by myself with the unknown circumstances that was

[sic] going on at the house. . . . A gun was discharged, and

we don’t really know what’s going on inside.” Similarly, Sergeant Roger Dillon explained that “Deputy Elliott staged

around the corner. It’s a safety issue. We don’t go to those

kind of calls by ourselves because of — they’re not stable and

the potential of getting hurt. So she staged around the corner.”

When other units arrived, Deputy Elliott, along with Sergeant

Roger Dillon and Deputy Brian Templeton, entered the neighborhood. 

Deputy Elliott testified that she saw a man—Russell,

though Deputy Elliott did not know this yet—“hopping out to

the car with two other females coming out of the garage

door.” Sergeant Dillon noted that there were two women with

the injured man, though he had expected him to be alone. He

testified that: 

all the call kept saying is that there is no one else in

the house, but then we’re getting the conflicting

information of other names. I did not — I did not see

anything in the events or hear anything on the radio

that would tell me that there were females on the

scene at all. 

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

1The parties did not supply a record of any radio transmissions between

dispatchers and the responding officers, so our analysis follows the facts

presented in the exhibits and testimony from the pretrial suppression hearing. 

UNITED STATES v. RUSSELL 1215
Deputy Elliott ordered Russell out of the car and began

questioning him, but kept her weapon holstered. When Deputy Elliott asked Russell to identify himself, he refused. Deputy Elliott was similarly rebuffed when she asked Russell

“what happened there.” Russell did not express to Deputy

Elliott any objection to the entry of the other officers into the

residence. 

While Deputy Elliott was questioning Russell outside the

house, Sergeant Dillon and Deputy Templeton immediately

entered the house with their guns drawn. Sergeant Dillon testified that “for my safety, I drew my gun and kept it in a ready

position where I could engage anyone who might pop up out

of a closet, out of a doorway, out of anywhere.” Sergeant Dillon explained that his “intent was to go through the house to

look to see if there were any other victims inside the residence, anyone that was injured and needed medical attention,

or if there was a suspect that may have injured the subject

who in the event claimed to have been shot in the foot.” He

testified that “I was looking for another victim. And I was

looking for possibly an armed subject inside the house.” Sergeant Dillon then found the weapon in plain view in Russell’s

bedroom, but found no other person—injured or otherwise. 

Russell was charged with a violation of 18 U.S.C.

§ 922(g)(1), which makes unlawful the possession of a firearm by a convicted felon. Russell moved to suppress the gun

evidence. The district court denied the motion after an evidentiary hearing, holding that the exigent circumstances exception supported the search, and in the alternative, that Russell

had consented to the search of his residence:

The situation was one in which there was sufficient uncertainty that it made perfect sense for the

law enforcement officers to try to ensure that there

wasn’t another victim—or there might be some other

circumstances which would require their clearing the

house. 

1216 UNITED STATES v. RUSSELL
I also believe . . . that there was a consent and that

the consent was not conditioned. And that while I

agree with [defense counsel] that the circumstances

giving rise to the consent no longer applied, the consent was still out there.

Russell subsequently entered a guilty plea pursuant to an

agreement that reserved his right to appeal the denial of his

motion to suppress.2

II

[1] Russell contends that the warrantless search cannot be

sustained under the emergency doctrine. Our case law recognizes that the emergency doctrine, an exception to the warrant

requirement, may support a warrantless search “if a police

officer, while investigating within the scope necessary to

respond to an emergency, discovers evidence of illegal activity, that evidence is admissible even if there was not probable

cause to believe that such evidence would be found.” United

States v. Cervantes, 219 F.3d 882, 888 (9th Cir. 2000). See

also United States v. Stafford, 416 F.3d 1068, 1073 (9th Cir.

2005). 

The emergency doctrine derives from Mincey v. Arizona,

437 U.S. 385 (1978), which recognized police officers’ community caretaking function. See id. at 392 (noting that the

Court did “not question the right of the police to respond to

emergency situations” without a warrant). United States v.

Cervantes—building on Mincey—adopted three requirements

for the emergency doctrine: 

2Whether exigent circumstances support a warrantless search is a mixed

question of law and fact which we review de novo. United States v.

Bynum, 362 F.3d 574, 578-79 (9th Cir. 2004); United States v. Zermeno,

66 F.3d 1058, 1063, n. 2 (9th Cir. 1995). We review findings of fact

underlying the district court’s determination for clear error. Bynum, 362

F.3d at 578-79. 

UNITED STATES v. RUSSELL 1217
(1) The police must have reasonable grounds to

believe that there is an emergency at hand 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.

(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. 

219 F.3d at 888 (quoting People v. Mitchell, 39 N.Y.2d 173,

347 N.E.2d 607, 609, 383 N.Y.S.2d 246 (N.Y. 1976)). See

also United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir.

2005); Martin v. City of Oceanside, 360 F.3d 1078, 1082 (9th

Cir. 2004); United States v. Bradley, 321 F.3d 1212, 1214

(9th Cir. 2003). 

A

Russell first argues that the police did not have “reasonable

grounds to believe that there [was] an emergency at hand and

an immediate need for their assistance for the protection of

life.” Cervantes, 219 F.3d 888. 

1

[2] Our analysis of the record indicates that even though the

police observed that one man had exited the residence before

they arrived, there was confusion as to whether this was the

only injured person. The police had reason to believe that

there were two injured men at Russell’s residence—one

named Gregory Hines and the other named Willie Russell.

Indeed, the police received a variety of conflicting data. They

were told first, that one person had been shot in the foot; then

another shot himself in the foot; then the police were told the

caller was alone; then that his girlfriend was going to kill him;

1218 UNITED STATES v. RUSSELL
and then that Russell might not be alone. When the police

finally arrived at Russell’s home, they found one injured person (rather than two) in the driveway (rather than in the

house) accompanied by two women (rather than alone). Given

the substantial confusion and conflicting information, the

police were justified in searching the house in order to determine whether there were other injured persons, as their information indicated was the case. 

2

[3] Russell next argues that it was “manifest” that only one

person had placed two phone calls. We disagree. Even in

retrospect, the officers’ confusion is understandable. In Russell’s first call, the emergency dispatch operator noted that the

victim stated that he had been shot, not that he had shot himself. When Russell placed a second call and spoke with a different emergency operator and stated that he had shot himself,

the circumstances he described were different. Even with perfect information and sufficient time to digest and analyze it,

the police would still have been justified in entering the house.3

Thus, given the circumstances, it cannot be said that the situation was clear, or that the fact of a sole injured person was

evident, or even that the shooting had been accidental. 

[4] Even if the situation were clear in hindsight, however,

the police had only a few minutes in which to determine

whether a lurking predator or injured person in need of assistance might be inside the house. It is unreasonable to expect

the police to piece together a perfectly coherent picture in the

scant minutes they had to digest the constantly-updated and

conflicting information. See Graham v. Connor, 490 U.S.

3Russell attempts to rely on the collective knowledge doctrine, which

extends to the knowledge of the police dispatchers. See United States v.

Fernandez-Castillo, 324 F.3d 1114, 1118 (9th Cir. 2003). However,

because Russell spoke to two different emergency operators, no single

operator was aware that the same injured person had placed both calls. 

UNITED STATES v. RUSSELL 1219
386, 397 (1989) (cautioning against second-guessing police

officers, who “are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and

rapidly evolving”). 

3

Russell also argues that our prior cases emphasize that the

officers must first determine that there was an emergency

before entering the house. In United States v. Bradley, for

example, the court noted that “before the officers entered the

house, they took several other steps,” including knocking on

the front door and speaking with neighbors before entering

the house. 321 F.3d at 1215. In United States v. Deemer, the

officers, responding to an emergency call from an intoxicated

caller, only made an emergency entry after the woman who

answered the door stated that she was alone, but police heard

movement behind the door. 354 F.3d 1130, 1132 (9th Cir.

2003). Russell also points to Martin v. City of Oceanside,

where the police, responding to a concerned father’s call

about his daughter, spoke to neighbors before entering the

house. 360 F.3d at 1082. Finally, in United States v. Martinez,

we affirmed the district court’s denial of a motion to suppress

based on the emergency doctrine where the police responded

to a domestic violence call and entered the house only after

hearing screaming coming from inside. 406 F.3d 1160. Based

on this case law, Russell argues that the police should have

stopped to speak with him, or his mother or girlfriend who

were helping him into the car, to determine whether there

were additional injured persons in the house. 

[5] Russell’s argument is unconvincing for several reasons.

Most obviously, our case law clearly requires that the police

must only have “reasonable grounds to believe that there is an

emergency at hand and an immediate need for their assistance

for the protection of life.” Cervantes, 219 F.3d at 888. Russell’s analysis, however, would incorporate a fourth requirement into the emergency doctrine: that the police obtain

1220 UNITED STATES v. RUSSELL
independent verification or other information relating to the

emergency before entering the house.4 We decline to read an

additional limitation into the emergency exception’s settled

case law. Further, such a requirement would dramatically

slow emergency response time, and would therefore be at

odds with the purpose of the emergency doctrine—

“allow[ing] police to respond” to emergency situations.5

Mincey, 437 U.S. at 392. The only requirement—which the

police easily met—is that they have “reasonable grounds to

believe that there is an emergency at hand.” Given the circumstances, the officers and dispatchers clearly believed there

was an ongoing emergency.6

Further, Bradley, Martin, and Deemer do not stand for the

proposition for which Russell cites them. In each of these

cases, the police had to take additional steps to determine

whether there was an emergency that justified entry in the

first place. In Bradley, the police “could not locate [the missing child] in the places [his mother] said he was.” 321 F.3d

at 1215. In order to determine whether there was actually an

emergency that justified entry, the police took steps to determine if the child was with neighbors before entering Russell’s

house. Similarly, in Martin, the police were responding to a

father concerned about his daughter—who had not answered

her phone—and were therefore uncertain whether there was

4We agree with the dissent’s characterization of the emergency exception as “well-delineated.” Dissent at 1225 (quoting Martinez, 406 F3d. at

1164). This is precisely why we decline to read a further requirement into

the exception. 

5

Indeed, the facts of this case illustrate why such a requirement would

be dangerous: had the police been forced to stop and speak with Russell,

who steadfastly refused to divulge any information to officers on the

scene, their capability to rescue a potentially injured person inside would

have been dramatically handicapped. 

6What’s more, the district court concluded that the police believed there

was an emergency. While the dissent reaches a different conclusion, Dissent at 1228-29, we may not disturb the district court’s factual conclusion

unless clearly erroneous, which it is not. Bynum, 362 F.3d at 578-79.

UNITED STATES v. RUSSELL 1221
an actual emergency. In Deemer, again, the police were

uncertain whether there was any emergency basis for entering

the motel room, so they spoke to the woman who answered

the door. In Martinez, in contrast, the police entered the house

because the circumstances—a bruised female outside and

screaming coming from the inside—indicated that there was

an emergency. These cases indicate that the police only must

take additional steps if they otherwise lack reasonable

grounds to believe there is an emergency. Cervantes requires

no more, and our case law imposes no additional restriction

beyond the reasonable grounds requirement. 

[6] Applying these cases to the present facts, the police had

good reason to believe that there was an emergency and did

not need independent confirmation: they had already received

two emergency phone calls, saw only one severely injured

person when they arrived at the scene, and therefore had reasonable grounds to believe another might be inside the house.7

Therefore, the district court did not clearly err in concluding

that the officers had reasonable grounds to believe that there

was an emergency requiring their immediate intervention. 

B

[7] Next, Russell suggests improper motive. We are satisfied that the district court did not clearly err in determining

7The dissent argues that in Russell’s second call he cleared up the confusion he created by “describ[ing] what had happened in detail” and

“verify[ing] that he was alone in the house.” Dissent at 1226. However,

Russell never explained to the emergency dispatcher that he had previously reported a similar—though not identical—shooting under a different

name. Similarly, shortly after Russell “verified that he was alone,” dispatchers overheard voices in the background. Dissent at 1226. Even if an

omnipotent dispatcher had concluded that one of the voice’s was that of

Russell’s girlfriend, this could hardly assuage the officers’ concern—after

all, Russell had just stated that his girlfriend was going to kill him. See

supra at 1213. Russell may have intended to explain and defuse the situation, but we conclude, like the district court, that he failed miserably. 

1222 UNITED STATES v. RUSSELL
that the police entered Russell’s house motivated by an intent

to determine if there were any remaining victims or lurking

predators who might harm or harass emergency personnel.

The police entered the house with their guns drawn and swept

through the house in less than two minutes, a style of search

clearly inconsistent with an intent to discover and seize evidence.8

 In any event, the district court made a factual decision

to credit the officers’ testimony regarding their motive, concluding that it was benign. Even if the facts support other conclusions, they do not compel one in particular. The district

court’s conclusion—that the discovery of the evidence was

only ancillary to the officers’ main goal—was not clearly

erroneous. 

C

Finally, Russell suggests that the search was excessive. Our

review indicates that the district court did not clearly err in

determining that the police had a reasonable basis to associate

the places searched with the emergency in question. The

police searched only areas in which a potential criminal could

have been hiding in wait and areas in which an additional victim would have been waiting for assistance. The police

searched no drawers or other areas where an armed or injured

person could not conceivably have been hidden. 

III

Russell also challenges the district court’s alternative holding that consent to the search was implied. In light of our conclusion that the search was supported by the emergency

doctrine, we need not address the implied consent issue. 

8Following the discovery of the gun, and after radioing to fire and medical assistance teams that the scene was clear, the police engaged in a general search of the residence. As noted by the district court, however, the

police initiated this search after discovering the gun. It is not, therefore,

relevant to the question whether the initial emergency search, which was

extremely brief, was proper. 

UNITED STATES v. RUSSELL 1223
IV

[8] Russell urges that a limited Ameline remand should be

available because he has an “unpreserved Booker error that

may have affected [his] substantial rights, and the record is

insufficiently clear to conduct a complete plain error analysis.” United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir.

2005) (en banc). Russell was indeed sentenced under the Sentencing Guidelines pursuant to a statute without a mandatory

minimum and did not present a Sixth Amendment challenge.

Therefore, “a limited remand to the district court is appropriate for the purpose of ascertaining whether the sentence

imposed would have been materially different had the district

court known that the sentencing guidelines were advisory.”

Id. See also United States v. Murillo, 419 F.3d 906, 916 (9th

Cir. 2005). 

AFFIRMED IN PART; REMANDED IN PART. 

THOMAS, Circuit Judge, concurring in part and dissenting in

part: 

I agree that an Ameline remand is appropriate in this case.

However, I respectfully disagree that the emergency doctrine

justified a warrantless search. 

The emergency doctrine is a very limited and specific

exception to the requirement that a search warrant be obtained

before searching a private residence. “[P]hysical entry of the

home is the chief evil against which the wording of the Fourth

Amendment is directed.” Payton v. New York, 445 U.S. 573,

585 (1980) (quoting United States v. U.S. District Court, 407

U.S. 297, 313 (1972)). For that reason, “searches and seizures

inside a home without a warrant are presumptively unreasonable.” Id. at 586. As the Supreme Court noted in Mincey v.

Arizona, 437 U.S. 385 (1978): 

1224 UNITED STATES v. RUSSELL
The Fourth Amendment proscribes all unreasonable

searches and seizures, and it is a cardinal principle

that “searches conducted outside the judicial process,

without prior approval by judge or magistrate, are

per se unreasonable under the Fourth Amendment—

subject to a few specifically established and welldelineated exceptions.” 

Id. at 390 (quoting Katz v. United States, 389 U.S. 347, 357

(1967)). 

We have defined two “specifically established and welldelineated exceptions” to the warrant requirement: exigency

and emergency. United States v. Martinez, 406 F.3d 1160,

1164 (9th Cir. 2005). The exigency exception, which is not at

issue in this case, permits a warrantless search “if there is

probable cause to believe that contraband or evidence of a

crime will be found at the premises and that exigent circumstances exist.” Id. (citing United States v. Lai, 944 F.2d 1434,

1441 (9th Cir. 1991)). 

At issue in this case is the emergency exception to the warrant requirement, which permits a warrantless search when

officers “reasonably believe that a person within is in need of

immediate aid.” Id. at 392. “The emergency doctrine is based

on and justified by the fact that, in addition to their role as

criminal investigators and law enforcers, the police also function as community caretakers.” United States v. Stafford, 416

F.3d 1068, 1073 (9th Cir. 2005). 

However, “[t]he police’s authority to search and seize property when acting in its role as ‘community caretaker’ has a

different source than its authority to search and seize property

to investigate criminal activity.” Miranda v. City of Cornelius,

429 F.3d 858, 863 (9th Cir. 2005). Because there are sharp

distinctions between the community caretaking and law

enforcement roles of the police, the analysis under the emergency “community caretaker” doctrine differs significantly

UNITED STATES v. RUSSELL 1225
from the analysis we undertake when police are performing

law enforcement functions. Id. 

Under the emergency community caretaker doctrine, the

reasonable suspicion must be of need, not criminal activity.

When law enforcement officers are rendering emergency aid,

they are performing a community caretaker function; when

they are investigating the cause of an emergency, they are

performing a law enforcement function. 

To justify application of the emergency doctrine, three circumstances must exist: 

(1) The police must have reasonable grounds to

believe that there is an emergency at hand 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. (3) There must be some reasonable basis,

approximating probable cause, to associate the emergency with the area or place to be searched. 

United States v. Cervantes, 219 F.3d 882, 888 (9th Cir. 2000)

(quoting People v. Mitchell, 347 N.E.2d 607, 609 (N.Y.

1976)). We analyze the “reasonable grounds to believe that

there is an emergency at hand,” on an objective basis, taking

into consideration the collective knowledge of the officers at

the time. United States v. Sutton, 794 F.2d 1415, 1426 (9th

Cir. 1986). 

In this case, dispatchers received two almost identical calls

from the same household indicating that a man had accidentally shot himself in the foot. The dispatchers were uncertain

from the first call as to the source of the shooting, but they

never communicated that to the officers proceeding to the

scene. That uncertainty was cleared up in the second call, in

which Russell described what had happened in detail. He verified that he was alone in the house. He also answered the dis1226 UNITED STATES v. RUSSELL
patcher’s multiple questions about the location of the firearm,

culminating in this exchange: 

Russell: Oh my goodness people — Oh, no.

Please. Please don’t let me die. Hello. 

Dispatcher: I’m still here, Willie. 

Russell: Why they not here, Ma’am? 

Dispatcher: They’re on their way there. Okay? 

Russell: (Moaning) Oh, my God. Oh, please tell

those people to hurry up. 

Dispatcher: They’re on their way. I need you to

think about this. What happened to the

gun? 

Russell: I left it upstairs somewhere. I dropped

it on top of stuff on the floor. 

Dispatcher: Okay. You left it upstairs. Are you . . .

Russell: Why do you keep asking me that? 

Dispatcher: Because I want my officers to know

where that weapon is before they come

in that residence. 

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

gun. 

Dispatcher: You’re at the front door. 

Russell: Yes, I crawled to the front door. 

Dispatcher: Okay, is the door unlocked? 

UNITED STATES v. RUSSELL 1227
Russell: Yes, I opened the door for them. 

Dispatcher: Okay, is the door open. 

Russell: Please don’t make me suffer. 

Dispatcher: The front door is open or it’s unlocked?

Russell: This door is open. 

Dispatcher: Okay. 

At that point, the owner of the house and Russell’s mother

arrived. The dispatcher overheard the exchange in which Russell told them that he shot himself in the foot. 

After the initial communications, the officers sent to the

scene were informed by the dispatcher that Russell said he

was home alone and was moving a gun from the bedroom to

a closet when it went off. The officers were informed by the

dispatcher that Russell had crawled to the front door and

opened it for the officers. 

When the first officer arrived, she waited outside the

entrance to the cul-de-sac for four minutes until the other

units reached the scene. As she pulled up, she saw Russell

hopping out to a car parked in the driveway with a towel

wrapped around his leg, accompanied by the two women.

Russell entered the back seat of the car, and one woman

entered the front of the vehicle. The officer ordered the driver

out of the car. The women were not questioned. Two other

officers arrived at the scene and saw the first officer talking

with Russell. 

At that point there was no objective evidence that any victim was in the house in need of immediate aid. The officers

made no attempt at the scene to ascertain whether there was

anyone in the house. The women were not questioned, nor did

1228 UNITED STATES v. RUSSELL
the officers question Russell. The objective evidence at hand,

from Russell’s firsthand accounts, was that he had shot himself accidentally in the foot in an upstairs bedroom and had

dropped the firearm. No evidence at the scene contradicted

this report. 

However, rather than taking steps to ascertain the situation,

the arriving officers immediately proceeded to enter and

search the house with guns drawn. They methodically

searched the house and found the firearm in an upstairs bedroom on the floor of a closet. Upon finding the gun, the officers remained in the room until other officers arrived. Then,

the officers continued their general search. As one of the officers testified at the suppression hearing: 

Q. At some point Sargeant Dillon found a firearm?

A. Yes, sir. 

Q. Correct? Then you continued to search after

that, right? 

A. Yes, sir. 

Q. Right? And you were searching for other

ammunition and firearms? 

A. Yes, sir. 

Q. Okay. And during the course of that, you found

a pill bottle in a drawer? 

A. Yes, sir. 

Q. And you seized that? 

A. Yes, sir. 

UNITED STATES v. RUSSELL 1229
Q. Correct? And you also claimed that you — that

you saw several narcotics smoking pipes

located in an open drawer in plain view; is that

correct? 

A. Yes, sir. 

Q. But in fact they were not, they were inside some

kind of a case; isn’t that correct? 

A. A paper bag sir. 

The officers verified at the suppression hearing that they

continued to search after they had determined that nobody

else was present in the house and that none of the searching

officers had made any inquiries prior to the search to ascertain

whether they were additional victims in the house. 

Under these circumstances, the emergency exception did

not justify a warrantless search.1 The objective evidence indicated that the victim was already outside; he had informed the

dispatcher that he was alone in the house; the women who

arrived later were already outside; there was no objective evidence on the scene that there was a victim in the house in

need of immediate assistance; no inquiries were made to

determine whether there was another injured person in the

house; the search continued after the officers ascertained that

there was no one else in the house; and the search was not

confined to looking for persons in need of medical attention,

but included searching drawers and paper bags. One of the

1The majority claims that the district court made a factual finding of

emergency, to which we must defer. However, the record does not support

this assertion. The district court did not even use the word “emergency”

in its findings, much less make a specific finding of emergency. In any

case, as the majority notes, the determination of the circumstances under

which a warrantless search may be authorized is a mixed question of fact

and law that we review de novo. United States v. Bynum, 362 F.3d 574,

578-79 (9th Cir. 2004); Martinez, 406 F.3d at 1163. 

1230 UNITED STATES v. RUSSELL
officers who searched and discovered the firearm remained in

the room securing the gun until “someone relieved me inside

the house to maintain control over the crime scene inside the

house.” 

The totality of the circumstances indicates that the officers

were investigating the cause of the emergency in conducting

the search—a law enforcement function, and not rendering

assistance to a person in need of immediate aid—a community caretaking function. They were treating the house as a

crime scene. Their suspicions of criminal activity may well

have been aroused by Russell’s initial use of a false name, but

suspicions of criminal activity do not justify employment of

the emergency community caretaker exception to conduct a

warrantless search. The Supreme Court has made it quite clear

that there is no “crime scene” exception to the warrant

requirement. Mincey, 437 U.S. at 395. 

The government properly concedes that we have never

extended the community caretaker doctrine this far. In every

case in which we have applied the emergency doctrine, officers had objective evidence that immediate emergency aid

was required and took further steps to verify that there was,

in fact, an emergency situation present in the premises. The

best case that the government offers is Martinez. However, in

Martinez, the officers heard shouting inside a house in which

a victim had exited and had reason to believe that a man

inside the house might be injured. The officers also questioned persons at the scene before entering. The officer who

entered the house did not conduct a general search, but only

observed a weapon in plain view on the couch as he was

removing the occupant. 406 F.3d at 1165. In Martinez, we

also recognized the especially volatile and dangerous nature

of domestic disputes. Id.

I recognize fully and appreciate the need for law enforcement to make split second decisions when confronted with

emergency situations. We must be deferential to the judgUNITED STATES v. RUSSELL 1231
ments of officers who are responding to potentially dangerous

situations. However, we deprive the emergency doctrine of its

vitality when we condone generalized warrantless searches in

vacant houses when the person in need of immediate aid has

already departed. Searching drawers and paper bags after the

officers have ascertained that there is no one in need of aid

cannot be considered rendering emergency medical assistance. After medical aid has been given, and the emergency

quelled, officers are certainly justified in investigating the

cause of the emergency; but this is a law enforcement function subject to the usual rules pertaining to law enforcement

searches and seizures. For these reasons, in my view, under

the circumstances presented by this case, the government has

not overcome the presumption that a warrantless search of a

private residence is unreasonable under the Fourth Amendment. 

1232 UNITED STATES v. RUSSELL