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No. 120,031

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

KOBY ROSS FISHER,

Appellant.

SYLLABUS BY THE COURT

1.

Under the Fourth Amendment to the United States Constitution and § 15 of the 

Kansas Constitution Bill of Rights, a warrantless entry into a private dwelling by law 

enforcement officers is considered unreasonable and invalid unless it falls within a 

recognized exception to the warrant requirement.

2.

The Fourth Amendment does not bar police officers from making warrantless 

entries and searches when they reasonably believe that a person within is in need of 

immediate aid. As a result, law enforcement officers may enter a home without a warrant 

to render emergency assistance to an injured occupant or to protect an occupant from 

imminent injury.

3.

The emergency aid exception is 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 
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premises is reasonable. The emergency aid exception limits officers to do no more than is 

reasonably necessary to ascertain whether someone is in need of assistance and to 

provide that assistance.

4.

An officer's action is reasonable under the emergency aid exception when the 

circumstances, viewed objectively, justify the officer's action. An officer's subjective 

motivation is irrelevant.

5.

Officers do not need ironclad proof of a likely serious, life-threatening injury to 

invoke the emergency aid exception and 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.

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed November 8, 

2019. Affirmed.

James M. Latta and Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before POWELL, P.J., PIERRON and ATCHESON, JJ.

POWELL, J.: Koby Ross Fisher appeals the district court's denial of his motion to 

suppress the admission of marijuana found when law enforcement searched his house 

after receiving a 911 call that someone in the house had been shot. After a hearing, the 

district court denied Fisher's motion and ultimately found Fisher guilty following a bench 

trial on stipulated facts. Before us, Fisher argues the emergency aid exception does not 
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apply because the officers did not ask the two women who were standing outside the 

house, including the one who made the 911 call, any clarifying questions. We disagree 

and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Officer Brian Johnson was dispatched to a house based on a 911 call. The female 

caller, who identified herself as Teresa, reported that someone had been shot at that 

address. When Johnson arrived, he saw two women arguing with a man on the street in 

front of the house. The man ran away from the officers. While other officers chased after 

the man, Johnson approached the house. Johnson did not see anyone injured outside and 

stopped to ask the women if either were hurt. Neither was injured. Johnson later learned 

one of the women, named Teresa, was the 911 caller. Johnson and another officer entered 

the house to search for anyone injured inside. The officers checked upstairs and found 

two locked bedroom doors. They then checked the basement and found an unhurt Fisher, 

as well as marijuana leaves and plants in plain view.

After finding marijuana but no one injured, the officers exited the house and 

guarded the front and rear doors while other officers sought a search warrant. After 

obtaining the search warrant, the officers reentered the house to collect the evidence. 

They found several items of drug paraphernalia, 930.07 grams of marijuana, a .45 caliber 

handgun, and $1,500 cash. The State charged Fisher with possession of marijuana with 

the intent to distribute, unlawful acts with proceeds derived from violation of drug laws, 

and possession of paraphernalia to use or distribute.

Fisher moved to suppress the evidence, arguing that the evidence resulted from the 

officers' illegal search of the house. At the hearing, Fisher argued the officers did not 

comply with the emergency aid exception's requirements because they had failed to ask 

the women standing outside the house any clarifying questions before entering the house. 
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The State argued that the officers' entry and search of the house was protected under the 

emergency aid exception to the warrant requirement.

The district court denied Fisher's motion to suppress, finding that "[t]he sole issue

[was] whether the officers were lawfully present in the residence." The district court 

found the officers were responding to a shooting and had no time to investigate if the 

women were involved in the shooting or to assess their credibility because "the officers 

had a duty to act and to act fast." The district court ultimately concluded that clearing the 

house to find if someone was hurt or dying was not unreasonable under the 

circumstances.

As part of a plea agreement with the State in a separate case, Fisher agreed to a 

bench trial on stipulated facts if his motion to suppress was denied, with the 

understanding that he was preserving the issue of suppression for appeal. After finding 

Fisher guilty based on the stipulated facts, the district court sentenced Fisher to a 

controlling prison term of 137 months but granted a dispositional departure to probation 

for 36 months.

Fisher timely appeals.

DID THE DISTRICT COURT ERR BY DENYING FISHER'S MOTION TO SUPPRESS?

Fisher argues the district court erred when it denied his motion to suppress, 

claiming that the officers lacked a lawful justification to enter the house because they 

failed to ask the women standing outside any clarifying questions or whether they were 

injured. The State counters that the emergency aid exception applies because, upon 

arrival at the house, the officers had an objectively reasonable basis to believe someone 

was seriously injured inside. Because Fisher concedes that the seized drugs were in plain 

view of the officers once they entered into the house, the question of whether the district 
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court should have suppressed the evidence turns on whether the officers' entry into the 

house was constitutionally permissible under the emergency aid exception.

Standard of Review

Our standard of review for a motion to suppress is bifurcated.

"The appellate court reviews the district court's factual findings to determine whether 

they are supported by substantial competent evidence. But the court's ultimate legal 

conclusion is reviewed using a de novo standard. The appellate court does not reweigh 

the evidence or assess the credibility of witnesses. When the facts supporting the district 

court's decision on a motion to suppress are not disputed, the ultimate question of 

whether to suppress is a question of law over which the appellate court exercises 

unlimited review. [Citations omitted.]" State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 

(2018).

The State bears the burden to prove the challenged evidence's admissibility. State v. 

Guein, 309 Kan. 1245, 1252, 444 P.3d 340 (2019).

Analysis

Under the Fourth Amendment to the United States Constitution and § 15 of the 

Kansas Constitution Bill of Rights, "a warrantless entry into a private dwelling by law 

enforcement officers is considered unreasonable and invalid unless it falls within a 

recognized exception to the warrant requirement." State v. Neighbors, 299 Kan. 234, 239, 

328 P.3d 1081 (2014); see Brigham City v. Stuart, 547 U.S. 398, 403-04, 126 S. Ct. 1943, 

164 L. Ed. 2d 650 (2006). "[T]he Fourth Amendment does not bar police officers from 

making warrantless entries and searches when they reasonably believe that a person 

within is in need of immediate aid." Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 

2408, 57 L. Ed. 2d 290 (1978). As a result, "law enforcement officers may enter a home 
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without a warrant to render emergency assistance to an injured occupant or to protect an 

occupant from imminent injury." Brigham City, 547 U.S. at 403.

Kansas recognizes several exceptions to the warrant requirement, including the 

emergency aid exception. Neighbors, 299 Kan. at 239. The State has the burden to prove 

"that a warrantless entry and the ensuing search and seizure were lawful." 299 Kan. at

240.

In 2014, the Kansas Supreme Court modified its emergency aid exception test to 

conform with more recent United States Supreme Court decisions:

"[T]he emergency aid exception [is] 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." 299 Kan. at 249.

An officer's action is reasonable under the emergency aid exception when the 

circumstances, viewed objectively, justify the officer's action. "An officer's subjective 

motivation is irrelevant." Brigham City, 547 U.S. at 404; see United States v. Najar, 451 

F.3d 710, 718-19 (10th Cir. 2006) ("We evaluate whether the officers were confronted 

with reasonable grounds to believe there was an immediate need 'guided by the realities 

of the situation presented by the record' from the viewpoint of 'prudent, cautious, and 

trained officers.'"). The emergency aid exception limits officers to "'do no more than is 

reasonably necessary to ascertain whether someone is in need of assistance and to 

provide that assistance.'" Neighbors, 299 Kan. at 251 (quoting 3 LaFave, Search and 

Seizure § 6.6[a], p. 622 & n.65).

Fisher does not challenge the second prong of the Neighbors test: whether law 

enforcement acted reasonably once inside the house. Instead, it is the first prong of the
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Neighbors test that is at issue: whether law enforcement had an objectively reasonable 

basis to believe someone inside was seriously injured. See 299 Kan. at 249. "Officers do 

not need ironclad proof of 'a likely serious, life-threatening' injury to invoke the 

emergency aid exception." Michigan v. Fisher, 558 U.S. 45, 49, 130 S. Ct. 546, 175 L. 

Ed. 2d 410 (2009). Chief Justice (then-Judge) Burger's oft-quoted opinion in Wayne v. 

United States, 318 F.2d 205, 212 (D.C. Cir. 1963), explains well the duty first responders 

have to act quickly when someone may need medical aid:

"The need to protect or preserve life or avoid serious injury is justification for what 

would be otherwise illegal absent an exigency or emergency. Fires or dead bodies are 

reported to police by cranks where no fires or bodies are to be found. . . . But the business 

of policemen and firemen is to act, not to speculate or meditate on whether the report is 

correct. People could well die in emergencies if police tried to act with the calm 

deliberation associated with the judicial process. Even the apparently dead often are 

saved by swift police response."

Law enforcement need not verify the facts of a 911 call because doing so

"'would dramatically slow emergency response time, and would therefore be at odds with 

the purpose of the emergency doctrine' . . . . [P]olice will routinely be summoned for 

matters that are not . . . real emergencies. We will not impose a duty of inquiry on the 

police to separate a true cry for help from a less deserving call for attention because the 

delay may cost lives that could have been saved by an immediate police response. The 

possibility that immediate police action will prevent injury or death outweighs the 

inconvenience we suffer when the police interrupt our ordinary routines in response to 

what turns out to be a non-emergency call. [Citation omitted.]" United States v. Snipe, 

515 F.3d 947, 953-54 (9th Cir. 2008).

Fisher invokes Neighbors to support his argument that the emergency no longer 

existed once the officers arrived and encountered the reporting party outside the house 

uninjured who did not convey that someone inside the house was injured. We disagree. 

While Neighbors provides the controlling test, it is factually distinguishable principally 
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because law enforcement first entered the home and determined no emergency existed 

before a search was then unlawfully conducted.

In Neighbors, the landlord called 911 after entering an apartment and discovering 

a man lying unresponsive on the couch. The landlord opened the door for law 

enforcement. The officers tried to wake Neighbors by shouting, but Neighbors did not 

move. They then entered the apartment because they were concerned for Neighbors' 

health. The officers were able to wake Neighbors and then confirmed that Neighbors had 

permission from the tenant to be in the apartment. Another officer heard Neighbors' name 

over his police radio and recognized him as a drug offender. That officer drove to the 

apartment and obtained Neighbors' consent to search his clothes, finding drugs.

The Neighbors court held that the officers had the authority under the emergency 

aid exception to enter the apartment based on the report of an unresponsive man inside on 

the couch. 299 Kan. at 249. Once the officers woke Neighbors, they corroborated his 

story that he had permission from the tenant to stay in that apartment. At this point, the 

emergency was over and "[t]he responding officers were required to leave the apartment 

once it was clear the occupants did not need medical assistance." 299 Kan. at 253. The 

emergency had ended when the last officer arrived and conducted the unlawful search of 

Neighbors' clothes. See Mincey, 437 U.S. at 393 (finding emergency aid exception did 

not apply at time of search because everyone in apartment had been located and 

circumstances requiring emergency aid no longer existed).

More pertinent to our discussion is the factually similar case of United States v. 

Holloway, 290 F.3d 1331 (11th Cir. 2002). There, police responded to two 911 calls 

reporting gunshots and arguing from Holloway's house. Law enforcement arrived to find 

Holloway and his wife on the porch. The officer instructed Holloway and his wife to raise 

their hands and walk towards his patrol car. After placing Holloway in his patrol car, the 

officer searched the house for possible victims. The officer found a shotgun on the side of 
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house. After securing the shotgun, the officer searched the entire house but found no 

injured people.

In its analysis, the 11th Circuit Court of Appeals in Holloway focused on the role 

that 911 calls play in the emergency aid exception. The officers received two reports 

from dispatch of gunshots and arguing and, upon their arrival, nothing "dissuaded the 

officers from believing the veracity of the 911 calls." 290 F.3d at 1338. The presence of 

Holloway and his wife supported the information from the 911 calls. The court held that 

"when exigent circumstances demand an immediate response, particularly where there is 

a danger to human life, protection of the public becomes paramount and can justify a 

limited, warrantless intrusion into the home." 290 F.3d at 1334. The court held that the 

search was justified under the emergency aid exception and that "[t]he possibility of a 

gunshot victim lying prostrate in the dwelling created an exigency necessitating 

immediate search." 290 F.3d at 1338.

Here, the police responded to a 911 call that someone had been shot. Like 

Holloway, the officers encountered people outside the house. But the mere presence of 

people outside the house where gunshots were reported did not remove the officers'

reasonable basis to search the house for victims. The officers were responding to a report 

that someone had been shot in the house and did not have time to engage in a detailed 

inquiry with the two unharmed women outside. The possibility of someone suffering 

from a gunshot wound inside the house necessitated an immediate search.

"[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." Neighbors, 299 Kan. at 251. The information Johnson 

had was someone had been shot and possibly needed immediate assistance. Johnson 

could not know for sure the physical state of the injured person without searching the 
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house for that person. Under the emergency aid exception, Johnson had the authority to 

act until assured that no one needed assistance.

Fisher argues that when the reporting party or resident is literally standing in the 

driveway when the officers arrive, failing to ask basic clarifying questions results in a 

loss of any objectively reasonable basis to immediately search the home. Fisher argues 

that if the purpose in entering a house is to render emergency medical assistance as 

quickly as possible, asking those clarifying questions is necessary to determine if 

emergency assistance is required and where in the house it is required.

Here, when responding to a 911 call of someone shot in the house, Johnson or the 

other officers were not required to stop and double-check with Teresa that someone in the 

house was hurt. With the benefit of hindsight, had Johnson stopped to ask Teresa some 

clarifying questions, it is possible he might have learned that no gunshot victim existed 

and the emergency could have been dispelled. But the law does not require law 

enforcement to be certain that someone needs emergency aid before searching a house; it 

only requires police to "reasonably believe that a person within is in need of immediate

aid." Mincey, 437 U.S. at 392; see Neighbors, 299 Kan. at 249.

Gunshot wounds can be—and often are—of a serious nature. Johnson and his 

fellow officers acted quickly to find the person who needed medical attention. During 

their search, they discovered Fisher in the basement with marijuana in plain view. The 

officers possessed an objectively reasonable basis to search the house for a person injured 

from a gunshot and limited the scope of their search to areas in the house where they 

might find a person suffering from a gunshot wound. The district court was correct in not 

suppressing the evidence.

Affirmed.