Michael Ball v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 16-CF-729

MICHAEL C. BALL, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(CF2-18913-13)

(Hon. Patricia A. Broderick, Trial Judge)

(Argued February 1, 2018 Decided May 24, 2018)

Sicilia C. Englert for appellant.

Chimnomnso N. Kalu, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney at the time the brief was filed,
Elizabeth Trosman, Suzanne Grealy Curt, Jennifer Fischer, and Anwar Graves,
Assistant United States Attorneys, were on the brief for appellee.

Before GLICKMAN and EASTERLY, Associate Judges, and OKUN, Associate
Judge, Superior Court of the District of Columbia.

Opinion for the court by Associate Judge OKUN.

Dissenting opinion by Associate Judge EASTERLY at page 20.

Sitting by designation pursuant to D.C. Code § 11-707 (a) (2012 Repl.).
 2

OKUN, Associate Judge, Superior Court of the District of Columbia: In this

case, the police went to an apartment building at approximately 5 a.m. after

receiving a radio run for an assault in progress. When the police arrived at the

apartment building, they were met by a resident who told the police that he had

called 911 because he heard yelling and screaming coming from an apartment on

the second floor. The police went to the second floor of the apartment building

and heard yelling and screaming coming from an apartment on that floor, which

sounded like a distressed female yelling as if she were in pain or struggling. The

police knocked on the door and approximately one to three minutes later, a woman

who looked panicked and concerned answered the door. The woman opened the

door halfway, but did not respond to the police officer‘s questions about what was

happening inside the apartment. The woman then looked back inside the

apartment and opened the door, after which the police entered the apartment.

The trial judge found that exigent circumstances justified the police officers‘

entry into the apartment without a warrant, and denied appellant‘s motion to

suppress the evidence they seized after entering the apartment. Although the issue

is a close one, we agree that exigent circumstances justified the warrantless entry

into the apartment and the subsequent seizure of evidence. Accordingly, for the

reasons set forth more fully below, we affirm.
 3

I.
1
Viewed in the light most favorable to the trial court‘s ruling, the

government‘s evidence at the suppression hearing showed the following. On

October 26, 2013, at approximately 5 a.m., the police received a radio run for an

assault in progress at 1626 28th Street, SE, Apartment 3. Officers Jeremy Kniseley

and Domonick Davis responded to that location, where they were met at the front

door of the building by a resident who told the police that he had called 911

because he heard yelling and screaming coming from Apartment 3 on the second

floor of the building. 2 The police went to Apartment 3 and knocked on the door,

but as they were knocking on the door of Apartment 3, they heard yelling and

screaming coming from Apartment 4. More specifically, Officer Kniseley testified

that he heard a ―distressed female‖ ―yelling as if she was in pain or struggling‖ and

Officer Davis testified that he heard a lot of ―commotion and going on‖ inside the

apartment. In addition, the 911 caller, who had followed the police halfway up the

steps to the second floor landing, pointed to Apartment 4 as the officers heard

yelling and screaming coming from that apartment.

1
See, e.g., Wade v. United States, 173 A.3d 87, 90 (D.C. 2017).
2
The apartment building is a two story building, with two apartments on the
first floor (Apartments 1 and 2) and two apartments on the second floor
(Apartments 3 and 4).
 4

Officer Kniseley then knocked several times on the front door of Apartment

4, identified himself as a police officer, and requested that the occupants open the

door. After a period of one to three minutes had elapsed, a woman opened the

front door halfway. According to Officer Kniseley, this woman was partially

dressed and appeared ―somewhat panicked and concerned,‖ while Officer Davis

testified that the woman was wearing a shirt and looked ―more like in a daze.‖ The

officers asked the woman what was happening inside the apartment, but the

woman did not respond and instead looked back into the apartment and then fully

opened the door.

After the woman fully opened the door, the officers observed another

woman inside the apartment, who appeared to be in the process of getting dressed.

Officer Kniseley testified that he thought ―some sort of sexual assault‖ had been

occurring inside the apartment, based on the ―yelling and screaming, and what [he]

thought was distress,‖ and based on his observations of the two partially dressed

women inside the apartment.

After observing these two women and not receiving any responses to their

questions, the officers entered the apartment and observed appellant, with his body
 5

partially obscured behind a wall.3 The police requested that appellant show his

hands, but appellant refused to do so, and instead kept looking back towards the

couch in the living room and then began reaching towards the couch. After the

officers observed appellant reach towards the couch, Officer Davis wrestled

appellant to the ground and both officers were able to handcuff him after a struggle

that lasted one to two minutes. During the struggle, appellant repeatedly yelled

―This is my house. I live here. This is my house.‖ The couch in the living room

moved from the wall as the result of this struggle, and when the officers stood up

after handcuffing appellant, they observed a black handgun lying behind the couch.

Officer Kniseley then recovered the gun, which the officer believed was loaded

because it was ―weighted‖ and ―heavy.‖

3
The record is not entirely clear as to appellant‘s location when the officers
first observed him. Officer Kniseley testified that appellant was standing in the
hallway behind the corner of a wall, and ―repeatedly peeking out and retreating
back and forth behind that corner,‖ while Officer Davis testified that appellant was
standing in the kitchen area ―shielded by a wall‖ and that he could only see
appellant‘s head and his right arm. The record also is not clear whether the
officers observed appellant before they entered the apartment. Officer Davis
testified that he saw appellant about ten seconds after he entered the apartment,
while Officer Kniseley testified that he saw appellant before he entered the
apartment, even though he testified that Officer Davis entered the apartment first.
The trial court did not address this conflict in the testimony and we need not
address this conflict either, and instead will assume, arguendo, that the police did
not see appellant until after they entered the apartment.
 6

After recovering the handgun, the police conducted a search of the

remainder of the apartment to ensure their safety and the safety of the occupants.

During this search, the police recovered one bag of marijuana from the top of a

refrigerator, one bag of marijuana from a television stand in the living room, and a

grinder with traces of marijuana on top of the couch. Appellant subsequently was

charged with unlawful possession of a firearm, in violation of D.C. Code § 22-

4503 (a)(1) (2012 Repl.), possession of an unregistered firearm, in violation of

D.C. Code § 7-2502.01 (a) (2012 Repl.), unlawful possession of ammunition, in

violation of D.C. Code § 7-2506.01 (a), unlawful possession of a controlled

substance (marijuana), in violation of D.C. Code § 48-904.01 (d) (2012 Repl.), and

unlawful possession of drug paraphernalia, in violation of D.C. Code § 48-1103

(a).

Appellant filed a motion to suppress the evidence seized from his apartment,

arguing that the evidence should be suppressed because the police entered his

apartment without a warrant and without his consent. The government filed an

opposition in which it argued that the police did not need a warrant to enter

appellant‘s apartment because: (1) they were responding to an emergency situation

in which they reasonably believed that the occupants in the apartment needed their

assistance; and (2) the woman who answered the door had consented to the search.
 7

The trial court conducted a hearing on appellant‘s motion to suppress the evidence

seized from his apartment, at which both Officers Kniseley and Davis testified. At

the conclusion of the hearing, the trial court denied appellant‘s motion, stating that

she credited the testimony of the officers and finding that exigent circumstances

justified the officers‘ warrantless entry into appellant‘s apartment and subsequent

seizure of evidence. 4

At appellant‘s first trial, the jury acquitted appellant of unlawful possession

of drug paraphernalia and could not reach a unanimous verdict as to the other

charges. The government subsequently dismissed the unlawful possession of

marijuana charge prior to appellant‘s second trial. At the second trial, the jury

convicted appellant of all three gun charges, and this appeal followed.

II.

Appellant argues on appeal that the trial court erred in denying his motion to

suppress evidence because there were no exigent circumstances justifying a

warrantless search, and because appellant did not consent to a search of the

4
The trial judge did not address the government‘s alternative argument that
the woman who answered the apartment door had consented to a search of the
apartment.
 8

apartment. We need not address appellant‘s consent argument, because we find

that exigent circumstances justified the warrantless search. See, e.g., Oliver v.

United States, 656 A.2d 1159, 1164 n.11 (D.C. 1995) (not addressing consent

argument after finding that search was justified under exigent circumstances

doctrine).5

The Fourth Amendment of the U.S. Constitution ―permits an officer to enter

a dwelling without a warrant if the officer has ‗an objectively reasonable basis for

believing‘ that entry is necessary ‗to render emergency assistance to an injured

occupant or to protect an occupant from imminent injury.‘‖ Evans v. United

States, 122 A.3d 876, 881 (D.C. 2015) (quoting Brigham City, Utah v. Stuart, 547

U.S. 398, 403, 406 (2006)). This exception to the warrant requirement, known as

the ―emergency aid exception,‖ does not depend on ―the seriousness of any crime

[the officers] are investigating when the emergency arises,‖ and instead ―requires

only ‗an objectively reasonable basis for believing‘ that ‗a person within [the

dwelling] is in need of immediate aid.‘‖ Michigan v. Fisher, 558 U.S. 45, 48

(2009) (quoting Brigham City, 547 U.S. at 404-05; Mincey v. Arizona, 437 U.S.

385, 392 (1978) (internal citations omitted)); see also Fisher, 558 U.S. at 49 (the

5
Appellant does not argue that the police could not properly seize his gun
once they observed it lying on the floor behind the couch in his living room;
appellant only challenges the warrantless entry into his apartment.
 9

police do not need ―ironclad proof of a likely serious, life-threatening injury‖ to

invoke the emergency aid exception).6 Furthermore, police officers do not have to

6
Courts have recognized three related doctrines pursuant to which the police
have been authorized to enter dwellings without a warrant: the ―exigent
circumstances‖ doctrine, the ―emergency aid‖ doctrine, and the ―community
caretaker‖ doctrine, and the differences among these doctrines have not always
been clear. See, e.g., State v. Deneui, 775 N.W.2d 221 (S.D. 2009). We consider
the emergency aid exception to fit within the broader category of exigent
circumstances justifying entry into a dwelling without a warrant. See United States
v. Booth, 455 A.2d 1351, 1354 (D.C. 1983) (noting with approval that several
courts have extended the exigent circumstances doctrine to include situations
where ―no crime assuredly has been committed,‖ but ―a person inside the premises
is reasonably believed to be in peril‖); Oliver, 656 A.2d at 1165 & n.12
(emergency aid exception is subset of exigent circumstances doctrine); Sutterfield
v. City of Milwaukee, 751 F.3d 542, 553 (7th Cir. 2014) (same).

In Booth, supra, this court set forth the following test to be applied when the
police enter a dwelling under the emergency aid exception: (1) the police must
have ―probable cause, based on specific, articulable facts, to believe that
immediate entry is necessary to assist someone in danger of bodily harm inside the
premises‖; (2) the entry must be ―tailored carefully to achieve that objective‖; and
(3) the entry must not be ―motivated primarily by the intent to arrest or search, but
by an intent to investigate a genuine emergency and to render assistance.‖ 455
A.2d at 1355-56. The court has not decided whether these requirements are still
applicable in light of Brigham City, supra, where the Supreme Court did not use
the probable cause standard or consider the officer‘s subjective motivations, and
instead stated that the police need an ―objectively reasonable basis‖ for believing
that emergency aid is needed, Brigham City, 547 U.S. at 406, and that the
―officer‘s subjective motivation is irrelevant‖ in these circumstances. Id. at 404.
We declined to address the potential implications of Brigham City in Evans, 122
A.3d at 881, and we likewise decline to address those implications in this case
because appellant does not argue that the officers‘ subjective motivations were
relevant in this case and because we will assume arguendo that the ―objectively
reasonable basis‖ standard is equivalent to the ―probable cause‖ standard.

(continued …)
 10

observe evidence of injuries before entering a premises pursuant to the emergency

aid exception, because ―[t]he role of a peace officer includes preventing violence

and restoring order, not simply rendering first aid to casualties.‖ Id. Finally, in

evaluating the reasonableness of the police officers‘ actions, ―the circumstances

before [the officers] are not to be dissected and viewed singly; rather they must be

considered as a whole. The totality of the circumstances -- the whole picture --

must be taken into account.‖ Oliver, 656 A.2d at 1166 (quotations omitted).

For the following reasons, the officers in this case had an objectively

reasonable basis for believing that they needed to enter appellant‘s apartment in

order to provide emergency assistance to the occupants of that apartment. First,

the officers received a call for an assault ―in progress‖ at appellant‘s apartment

building, so there was reason for the officers to believe that they were responding

to a situation involving ongoing physical violence. Second, the information in the

(… continued)
The dissent faults the court for using the ―fuzzy‖ objectively reasonable
basis standard. We believe this criticism is misplaced for two reasons. First, the
objectively reasonable basis standard is the standard adopted by the Supreme
Court, and we are not in a position to criticize this formulation, ―fuzzy‖ or
otherwise. Second, the dissent also ignores the language used by this court in
Oliver, where we explicitly interpreted probable cause in the emergency aid
context to mean ―reasonable grounds to believe,‖ because that formulation ―fits
well with a perceived emergency, in contrast with a basis for a prospective arrest,
for which ‗probable cause‘ is the traditional language.‖ 656 A.2d at 1166.
 11

call was corroborated when the officers arrived at the apartment building and were

met by the person who called 911 and told them he had called 911 because he

heard yelling and screaming coming from an apartment on the second floor, and

the 911 caller‘s reliability was enhanced by the fact that he did not remain

anonymous but met the police at the apartment building. See, e.g., United States v.

Jenkins, 329 F.3d 579, 581 (7th Cir. 2003) (911 call for assault in progress, when

made by caller who identifies himself, can justify warrantless search under exigent

circumstances exception); cf. Joseph v. United States, 926 A.2d 1156, 1161-62

(D.C. 2007) (upholding investigative stop and frisk based on 911 call from

identified citizen, noting that ―information from an identified citizen is

presumptively reliable‖). Third, this information was further corroborated when

the officers went to the second floor and heard yelling coming from appellant‘s

apartment, including the sounds of a woman who sounded as if she were yelling in

pain. Fourth, when the officers knocked on the door of appellant‘s apartment, no

one answered the door for a period of one to three minutes, and when a woman

finally did answer the door, she appeared to be panicked and concerned. Fifth, the

woman who answered the door did not respond to the police officer‘s questions

about what was happening inside the apartment, and instead opened the door

before the officers entered the apartment. Under these circumstances, it was
 12

objectively reasonable for the police to believe that their assistance was needed to

prevent injury, or further injury, to the occupants of appellant‘s apartment.

The cases cited by appellant do not dictate a different result. Indeed, these

cases involved situations where the police did not have an objectively reasonable

basis to believe there was an ongoing emergency in the premises they entered

without a warrant. For example, in Evans, supra, the police entered an apartment

without a warrant even though they had no objectively reasonable basis to believe

that anyone in the apartment needed emergency aid, because the two participants in

an alleged domestic violence incident both were being interviewed in a parking lot

outside the apartment building at the time of entry, and because each person

described a physical altercation that only involved the two of them. 122 A.3d at

881-82.

Likewise, in Washington v. United States, 585 A.2d 167 (D.C. 1991), the

police received a radio call for a woman with a gun, went to an apartment where

the woman who answered the front door of the apartment told the police that her

sister had a gun and she wanted it out of the house, and the officers then proceeded

down a hallway to a room that was identified as the appellant‘s room. Id. at 168.

The officers knocked on the door and asked the occupant to come outside and,
 13

after receiving no reply and waiting a few seconds, the officers forced the door

open, breaking it off its hinges, and observed the appellant sitting peacefully on a

bed with her three-year-old son. Id. at 168, 170. The police asked the appellant if

she had a gun, and when she denied having one, the police removed the appellant‘s

son from the room and searched the room, eventually finding a gun in a closed

shopping bag on a shelf of the clothes closet. Id. at 168. This court, in a 2-1

opinion, reversed the trial court‘s denial of the appellant‘s suppression motion,

finding that there were no exigent circumstances that justified a warrantless search

of the room because the appellant was sitting ―peacefully on a bed. Her hands

were in plain view; [and] she was under the continuing scrutiny of a police

officer.‖ Id. at 170. Under these circumstances, where the officers had ―taken

effective control of the situation, and neither they nor any other persons here

[were] threatened by the possibility that [appellant] would retrieve the gun and

either use it or dispose of it,‖ the court found that the police lacked exigent

circumstances justifying their warrantless search of the appellant‘s room. Id.

This case stands in stark contrast to the situations the police confronted in

Evans and Washington. Unlike Evans, this case did not involve a situation where

the participants in an alleged domestic violence dispute were already outside the

apartment and being interviewed by the police. Rather, in this case the police
 14

heard yelling and screaming coming from the apartment they subsequently entered,

including the sounds of a woman yelling as if she were in pain. And unlike

Washington, the police in this case were not confronted with a situation where a

woman was sitting peacefully on her bed with her three-year-old child when they

entered the room and conducted a warrantless search. To the contrary, the woman

who answered the door in this case looked panicked and concerned, did not answer

the door until one to three minutes after the officers knocked on the door and

announced their presence, and did not answer the officer‘s questions about what

was happening inside the apartment. Thus, Evans and Washington present very

different circumstances from this case and do not demonstrate that the police acted

in an objectively unreasonable manner when they entered appellant‘s apartment

without a warrant.

Appellant also argues that this court and the Supreme Court have upheld

warrantless searches under the emergency aid exception only when there were

stronger grounds to believe that emergency aid was needed. This argument has

some force. Indeed, in Booth, supra, this court upheld a warrantless entry into the

front hall of a rooming house where the person who answered the door had dried

blood on his face and the person did not respond to the officer‘s questions about

where the blood came from, 455 A.2d at 1356, and in Earle v. United States, 612
 15

A.2d 1258, 1263-64 (D.C. 1992), we upheld a warrantless entry into a house where

the police received a call for shots fired in or at the rear of the house, the officer

waited for ―quite some time‖ for someone to answer the door, and when someone

finally answered the door, he behaved nervously, looked repeatedly back behind

the door, refused to show his hands, and then tried to shut the door on the officer.

Likewise, in Brigham City, supra, the Supreme Court upheld a warrantless entry

where the police observed a fight occurring inside a house in which one of the

occupants hit another in the face, sending the injured person to the sink, spitting

blood. 547 U.S. at 406. Finally, in Fisher, supra, the Supreme Court upheld a

warrantless entry where the officers saw blood on the hood of a truck outside a

house, on clothes inside the truck, and on one of the doors to the house, and then

observed an occupant inside the house, with a cut on his hand, screaming and

throwing things. 558 U.S. at 45-46.

While each of these cases has indicia of exigent circumstances not present in

this case, such as the observation of blood on an occupant or the observation of

physical injuries being inflicted inside the dwelling, none of these cases either

explicitly or implicitly required the observation of such injuries before the police

can enter a dwelling pursuant to the emergency aid exception. To the contrary,

such a requirement is inconsistent with the Supreme Court‘s admonition that ―the
 16

role of a peace officer includes preventing violence and restoring order, not simply

rendering first aid to casualties.‖ Id. at 49 (emphasis added). This requirement

also is inconsistent with our own case law, in which we have upheld a warrantless

entry under the emergency aid exception, without any evidence that the police had

observed blood or physical injuries before entering the dwelling. See Oliver, 656

A.2d at 1167 (in kidnapping case, upholding warrantless entry without any

evidence of ―blood at the scene, gunshots, or cries for help‖).

Furthermore, numerous courts from other jurisdictions have found exigent

circumstances in comparable situations where the police have received a report for

yelling or screaming coming from a residence, and have not observed injuries to

any of the occupants inside the dwelling prior to entry. See, e.g., Commonwealth

v. Davido, 106 A.3d 611, 616-17 (Pa. 2014) (upholding warrantless entry where

officers received 911 call for a ―domestic situation‖ that involved a ―man hitting a

woman‖ and were informed en route to the residence that loud screaming had been

heard from inside residence); Jenkins, 329 F.3d at 580 (upholding warrantless

entry where police received 911 call for assault in progress and heard noise that

sounded like a person standing up and falling down as they approached the front

door); State v. Sharp, 973 P.2d 1171, 1175 (Ariz. 1999) (en banc) (upholding

warrantless entry where person heard two screams coming from room on second
 17

floor, along with pounding footsteps, and no one answered door when police

knocked and announced their presence); United States v. Barone, 330 F.2d 543,

544 (2d Cir. 1964) (upholding warrantless entry where police heard ―loud

screams‖ coming from rooming house in the middle of night); see also 3 WAYNE

R. LAFAVE, SEARCH AND SEIZURE § 6.6 (a) at 608, 617-18 (5th ed. 2012) (―there

are an infinite variety of situations in which entry for the purpose of rendering aid

is reasonable,‖ including situations where police ―respond to what appears to be a

fight within‖ the premises, and to ―screams in the dead of night‖).

Appellant and the dissent argue that the police could have and should have

obtained a warrant before entering appellant‘s apartment. However, in making this

argument, appellant and the dissent conflate the justifications underlying the

emergency aid exception with the rationales underlying the other exigent

circumstance exceptions. More specifically, while the police need to reasonably

believe that a crime has been committed before they can make a warrantless entry

to prevent the imminent destruction of evidence, Brigham City, 547 U.S. at 403, or

engage in ―hot pursuit‖ of a fleeing suspect, id.; see also Washington, 585 A.2d at

169, there is no such requirement when the police instead are attempting to provide

emergency aid to the occupant of a dwelling. Booth, 455 A.2d at 1354. Indeed, it

is because the emergency aid exception is tied to the need to address an ongoing
 18

emergency regardless of whether that emergency is the result of a crime, that we

and other courts have noted that the police may enter a premises without a warrant

if there is reason to believe that an occupant of the premises needs emergency

assistance even if ―no crime . . . has been committed.‖ Id.; see also Oliver, 656

A.2d at 1165 (―Warrantless entry in an ‗emergency‘ requiring preventive action

may be permitted by the [emergency aid] exception if a person inside the premises

is reasonably believed to be in danger even though no crime has necessarily been

committed‖); Sutterfield, 751 F.3d at 560 (emergency aid exception‘s defining

characteristic is ―urgency,‖ not the existence of criminal conduct, and there is ―no

logical need to additionally consider probable cause and the availability of a

standard criminal warrant‖ when considering the emergency aid exception); People

v. Hebert, 46 P.3d 473, 479 (Colo. 2002) (emergency aid exception does ―not

require probable cause that contraband or other evidence of criminal activity is

located at a particular place‖).

Finally, the dissent argues the fact that police heard women yelling in

appellant‘s apartment did not justify their warrantless entry into the apartment,

stating that ―[p]eople make noises in their homes, including yelling; sometimes

they yell very loudly.‖ Post at 27. But, of course, in evaluating the reasonableness

of the police‘s actions, context is everything – if the police heard the occupants of
 19

appellant‘s apartment yelling in joy on a Sunday afternoon after the Redskins

scored a touchdown, they assuredly would not have an objectively reasonable basis

to enter the apartment without a warrant. But in this case, where Officer Kniseley

heard a woman inside the apartment yelling not in joy, but as if she were in pain or

struggling, where he heard this yelling occur at 5 in the morning, after receiving a

call for an assault in progress, where an occupant in the building directed the police

to the apartment and confirmed that he had called 911 because he heard yelling and

screaming coming from the apartment, and where the woman who answered the

door looked panicked and concerned – in that context, the reasonableness of the

police actions looks quite different.7

Ultimately, as this court stated in Oliver, probable cause determinations in

the emergency aid context do not emanate ―from an antiseptic courtroom [or] a

7
The court is constrained to note that the dissent repeatedly mischaracterizes
both the scope and effect of the court‘s opinion, stating that it reduces the Fourth
Amendment to a ―nullity‖ Post at 21, and ―demand[s] very little information‖ of
the police before they enter a dwelling under the emergency aid exception. Post at
31. With all due respect, the court‘s opinion neither makes the Fourth Amendment
a nullity nor demands that the police possess very little information before entering
a dwelling in order to render emergency aid. Rather, the Court‘s opinion is a
narrow one, which notes the closeness of the issue presented and which sets forth
in detail the factors supporting the warrantless entry in this case. Contrary to the
dissent‘s protestations, the boundaries of the emergency aid exception have not
been drastically redrawn to allow warrantless entries based on ―nothing more than
speculation and forward momentum.‖ Post at 36.
 20

sterile library‖; rather, they require a ―pragmatic analysis of ‗every day life on

which reasonable and prudent men [and women], not legal technicians act.‖ 656

A.2d at 1165-66 (internal quotation marks omitted). And with this framework in

mind, we hold that the police lawfully entered appellant‘s apartment without a

warrant because they had an objectively reasonable belief that they needed to enter

the apartment to provide emergency assistance to an injured occupant or to protect

an occupant from imminent injury.

III.

For the reasons set forth above, the judgment of the trial court is affirmed.

So ordered.

EASTERLY, Associate Judge, dissenting: On the morning of his arrest, Mr.

Ball was in the company of two female friends in what he thought was the privacy

of his own home.1 He was naked and the women were in some state of undress.

The trio was loud. A downstairs neighbor called the police. The police responded

and then entered his apartment, without permission and without a warrant. In

protest, Mr. Ball cried out, ―This is my house. I live here. This is my house.‖ He

seemed to think the police had no authority to barge into his home. I would have

thought such an entry was precisely what the Fourth Amendment prohibits. The

1
These undisputed facts are from the trial testimony.
 21

majority opinion disagrees, interpreting the emergency aid exception to the Fourth

Amendment‘s warrant requirement beyond the bounds of any precedent of the

Supreme Court or this court. The majority opinion demands so little of the

government to justify a warrantless entry into a home, it ―reduce[s] the [Fourth]

Amendment to a nullity and leave[s] the people‘s homes secure only in the

discretion of police officers.‖ Johnson v. United States, 333 U.S. 10, 14 (1948).

Although ―[t]he Fourth Amendment protects the individual‘s privacy in a

variety of settings[,] [i]n none is the zone of privacy more clearly defined than

when bounded by the unambiguous physical dimensions of an individual‘s home—

a zone that finds its roots in clear and specific constitutional terms.‖ Payton v.

New York, 445 U.S. 573, 589 (1980). The Fourth Amendment states that ―[t]he

right of the people to be secure in their . . . houses . . . against unreasonable

searches and seizures[] shall not be violated.‖ Id. at 584-85. As the Supreme

Court has explained, ―[t]hat language unequivocally establishes the proposition

that at the very core of the Fourth Amendment stands the right of a man to retreat

into his own home and there be free from unreasonable governmental intrusion.‖

Id. at 589-90 (internal quotation marks and brackets omitted); see also id. at 585

(―[P]hysical entry of the home is the chief evil against which the wording of the

Fourth Amendment is directed.‖).
 22

The sanctity of the home is protected by strict adherence to the warrant

requirement. ―Crime, even in the privacy of one‘s own quarters, is, of course, of

grave concern to society,‖ but ―[t]he right of officers to thrust themselves into a

home is also a grave concern, not only to the individual, but to a society which

chooses to dwell in reasonable security and freedom from surveillance.‖ Johnson,

333 U.S. at 14. Thus, as a rule,

the Fourth Amendment has interposed a magistrate
between the citizen and the police . . . . not . . . to shield
criminals nor to make the home a safe haven for illegal
activities . . . [but] so that an objective mind might weigh
the need to invade the privacy in order to enforce the law.
The right of privacy was deemed too precious to entrust
to the discretion of those whose job is the detection of
crime and the arrest of criminals. Power is a heady thing,
and history shows that the police acting on their own
cannot be trusted. And so the Constitution requires a
magistrate to pass on the desires of the police before they
violate the privacy of the home.

Washington v. United States, 585 A.2d 167, 168 (D.C. 1991) (quoting McDonald

v. United States, 335 U.S. 451, 455-56 (1948)); see also Payton, 445 U.S. at 586,

602 (explaining that the warrant requirement ―interpose[s] the magistrate‘s

determination of probable cause between the zealous officer and the citizen‖ and

―minimizes the danger of needless intrusions.‖). Entering a home without first
 23

obtaining a warrant is ―presumptively unreasonable.‖ Brigham City v. Stuart, 547

U.S. 398, 403 (2006).

There are exceptions to the warrant requirement, but these are ―few in

number and carefully delineated.‖ Welsh v. Wisconsin, 466 U.S. 740, 749 (1984).

In particular, ―[a]ny warrantless entry based on exigent circumstances must, of

course, be supported by a genuine exigency.‖ Kentucky v. King, 563 U.S. 452, 470

(2011); see also Brigham City, 547 U.S. at 403 (the presumption that a warrant is

needed to enter a home may be overcome only when ―‗the exigencies of the

situation‘ make the needs of law enforcement so compelling that the warrantless

search is objectively reasonable under the Fourth Amendment.‖). The emergency

aid exception is one subset of exigent circumstances: ―[t]he need to protect or

preserve life or avoid serious injury is justification for what would be otherwise

illegal absent an exigency or emergency.‖ Brigham City, 547 U.S. at 403. But,

clearly, the boundaries of this exception cannot be drawn so as to swallow the rule.

A critical means of cabining the exception is to hold the government to its

burden of proof. Under our case law, the government must show that ―the police

[had] probable cause, based on specific, articulable facts, to believe that immediate
 24

entry [wa]s necessary to assist someone in danger of bodily harm inside the

premises.‖ United States v. Booth, 455 A.2d 1351, 1355-56 (D.C. 1983)2; see also

2
Booth also directs consideration of the subjective intent of the police
officer. 455 A.2d at 1354. The majority opinion acknowledges that ―probable
cause‖ is the standard under Booth, but notes that ―[t]he court has not decided
whether the[] requirements [of Booth] are still applicable in light of Brigham City.‖
Ante note 6.
Although the subjective intent of the officers has never been an issue in this
case, the parties agree that the Supreme Court in Brigham City made clear that
courts may not consider the subjective intent of the officer in assessing whether the
police made a lawful, warrantless entry to provide emergency aid. As for whether
the probable cause standard of Booth is still good law, the government argued for
the first time in its brief on appeal that the Supreme Court in Brigham City
displaced Booth and indicated a lesser quantum of proof—―an objectively
reasonable basis‖—was required to authorize a warrantless entry under the
emergency aid exception. But when pressed at oral argument about the meaning of
this language, the government acknowledged, given that the police in Brigham City
had seen a bloody fight in progress through a window and had at least probable
cause to believe someone was in need of emergency aid, it was unlikely that the
Court had meant to announce a new rule that called our probable cause
requirement under Booth into question. The government then pivoted and argued
that the police had probable cause to enter Mr. Ball‘s home.
The majority opinion ―assume[s] arguendo that the ‗objectively reasonable
basis‘ standard is equivalent to the ‗probable cause‘ standard,‖ ante note 6, but
persists in using the former, fuzzy language. The majority asserts it is bound to use
this terminology because the Supreme Court has ―adopted‖ it, id.; but, as explained
above, it is unclear what the Supreme Court meant with the use of this language.
Thus, in my view, we are bound to employ the standard as articulated by our court
and consider whether the police had ―probable cause,‖ which we have specifically
defined in this context. Booth, 455 A.2d at 1355; Oliver v. United States, 656 A.2d
1159, 1170 (D.C. 1995) (interpreting ―probable cause‖ to require ―reasonable
grounds to believe based on specific articulable facts that immediate entry was
necessary to assist someone in danger of bodily harm‖ quoting Booth); see also id.
at 1166 (explaining that under our ―probable cause‖ standard, ―solid facts . . . not
mere reasonable suspicion‖ is required).

(continued …)
 25

Bennett v. United States, 26 A.3d 745, 751 (D.C. 2011) (explaining that in the

Fourth Amendment hierarchy, a ―hunch or gut feeling‖ is at the bottom rung,

followed by ―reasonable articulable suspicion,‖ which is still ―substantially less

than probable cause‖). After all, if police were authorized to enter a home based

on less than probable cause to believe that someone inside is in need of aid, the

Fourth Amendment‘s asserted protection for the home would be no meaningful

protection at all.

The majority opinion does not hold the government to its burden. To justify

the warrantless entry into Mr. Ball‘s apartment, the majority relies on information

that patently does not amount to probable cause (or an objectively reasonable basis,

supra note 2) to believe that someone was in need of emergency aid. The sum

total of the evidence the majority opinion can muster is testimony that one officer

(… continued)
Even if ―an objectively reasonable basis‖ were some quantum of information
less than probable cause, what the police knew in this case before they crossed Mr.
Ball‘s threshold would not suffice. See, e.g., Evans v. United States, 122 A.3d 876,
881 (D.C. 2015) (declining to address ―the potential implications of Brigham City‖
and concluding that ―[e]ven applying a less stringent reasonable-belief standard,
. . . the police did not have adequate reason to believe that immediate entry was
necessary to provide emergency aid.‖).
 26

heard a woman‘s voice unintelligibly yelling ―as if she was in pain or struggling‖ 3;

that after the police knocked, identified themselves as police, and waited for a few

minutes, a partially undressed woman answered the door; that according to one

officer, the woman had a ―somewhat panicked and concerned‖ look in her eye and

quickly glanced into the apartment instead of answering when the officer asked if

everything was okay4; and that, while standing at the threshold, the police also saw

another partially dressed woman standing in the living room. 5 Ante at 10-11; see

also id. at 3-4.

3
In explaining the police‘s justification for making a warrantless entry, the
majority opinion effectively counts many times over the same reason: the fact that
disturbing noise was heard coming from the apartment. Ante at 10-11. But the
majority opinion glosses over the fact that there were three different descriptions of
this noise credited by the trial court. Only Officer Kniseley provided the
description on which the majority opinion rests its analysis. By contrast, his
partner, Officer Davis, whose testimony the trial court also credited, only heard
what sounded like ―commotion‖; and both officers testified that the 911 caller said
he heard yelling that sounded like a ―fight.‖ See Evans, 122 A.3d at 881 (for the
proposition that ―[t]he collective knowledge doctrine ‗must apply equally to
information augmenting or diminishing the objective basis the police have for
conducting a seizure‘‖ (citing Turner v. United States, 623 A.2d 1170, 1172 n.2
(D.C. 1993)).
4
Officer Davis only perceived the woman who answered the door to be ―in
a daze.‖
5
This narrative, presented for the first time at the suppression hearing a
year-and-a-half after the arrest, is inconsistent with the affidavit in support of Mr.
Ball‘s arrest. Other than noting the fact of a 911 call, it contains no information to
support a determination that the police had probable cause to believe they needed
to enter Mr. Ball‘s apartment to provide emergency aid. Instead, the Gerstein
indicates that the police entered the apartment on consent.
 27

Unquestionably, the information the police had before the door opened—

unintelligible yelling ―as if‖ an inhabitant of the apartment was struggling or in

pain—did not give them probable cause to believe that someone was in need of

emergency aid, and the majority opinion does not argue otherwise. Ante at 18-19

(relying on the yelling plus later-acquired ―context‖). People make noises in their

homes, including yelling; sometimes they yell very loudly. If this is enough to

justify a warrantless entry, then the Fourth Amendment‘s protections will turn on

whether one has the luxury of owning a stand-alone home or whether one resides

in an apartment or townhouse with shared walls. But see United States v. Ross,

456 U.S. 798, 822 (1982) (acknowledging that under the Fourth Amendment ―the

most frail cottage in the kingdom is absolutely entitled to the same guarantees of

privacy as the most majestic mansion.‖).

To be sure, the police were fully justified in knocking on Mr. Ball‘s door

and conducting an inquiry based on the unintelligible yelling. But, between

knocking on the door and crossing the threshold of the home, the police did not

gain sufficient additional information to give them probable cause to believe that
 28

someone was in need of emergency aid. Rather, after the door opened, the police

arguably moved further away from probable cause. 6

Here, in response to police knocking, a woman came to the door. 7 Officer

Kniseley‘s perception that she had a somewhat ―panicked and concerned look‖ on

6
The majority opinion suggests that it is impermissible ―dissection‖ to
examine the totality of what the police knew along a timeline to determine whether
the information they possessed ever rose to the level of probable cause so as to
justify a warrantless entry to provide emergency aid—or whether their cause for
mere suspicion remained static or even dissipated. Ante at 10 (citing Oliver, 656
A.2d at 1166). But this is precisely what we have said courts should do in
assessing the evidence known to the police. Oliver, 656 A.2d at 1165 (explaining
that in assessing whether the police may make a warrantless entry under the
emergency aid exception, ―[f]acts . . . must be examined in the context and
sequence in which they occur.‖). See, e.g., Washington v. United States, 585 A.2d
167 (D.C. 1991) (discussed infra at 12-13); Douglas-Bey v. United States, 490
A.2d 1137, 1138 (D.C. 1985) (police had initial authority to make warrantless
entry pursuant to emergency aid exception where they received a report of
shooting at house and arrived to see the door ajar, making visible a shoe and a pool
of blood; but police did not have authority to conduct a further search of the
apartment without a warrant after they failed to discover anyone in need of
assistance within).
7
Thus this case is distinguishable from three of the four nonbinding
decisions from other jurisdictions the majority opinion cites to support its holding
in the absence of supporting precedent from the Supreme Court or this court. Ante
at 16-17 (citing United States v. Jenkins, 329 F.3d 579 (7th Cir. 2003);
Commonwealth v. Davido, 106 A.3d 611 (Pa. 2012); State v. Sharp, 973 P.2d 1171
(Ariz. 1999) (en banc)). In those cases, police suspicion only heightened because
no one came to the door to open it when the police arrived to conduct their inquiry.
Jenkins, 329 F.3d at 580; Davido, 106 A.3d at 616-17; Sharp, 973 P.2d at 1175.
 29

her face was consistent with an individual being understandably surprised and

concerned to be confronted by police at the door at 5 a.m. Her glance back into the

apartment without immediately responding to the police was similarly ambiguous

under the circumstances.8 See Duhart v. United States, 589 A.2d 895, 899 (D.C.

1991) (explaining that ―there are limits to the inference that an experienced

reasonable police officer can rationally draw‖ and that if the information available

to the police ―is capable of too many innocent explanations, then the intrusion

cannot be justified‖).

Even construing these facts as providing some corroboration that something

was wrong in the apartment, the government did not have probable cause to

believe they needed to enter Mr. Ball‘s apartment to provide emergency aid. We

must also factor in what the police did not see. Ante at 10 (acknowledging that

―the totality of the circumstances—the whole picture—must be taken into

account‖). The police saw nothing to confirm their suspicion that there was an

assault in progress. Neither woman visible to the police from the threshold

appeared to be ―in pain or struggling,‖ bleeding or bruised, crying or upset, or in

8
Cf. Robinson v. United States, 76 A.3d 329, 338-39 (D.C. 2013)
(reaffirming that citizens have the right not to speak to the police).
 30

any apparent physical danger. There was no sign of broken objects, upended

furniture, or any evidence of a struggle or physical altercation. 9 In sum, after the

woman opened the door to the apartment, Officer Kniseley‘s guess that a woman

had been yelling because she was being physically assaulted was still just a guess.

None of this court‘s prior cases support the majority opinion‘s broad

conception of police authority to enter a home without a warrant based on mere

speculation that someone may need emergency aid; instead they make clear that far

more is required. The majority opinion resists the constraints of our precedent by

attempting to show both that (1) the cases in which this court rejected warrantless

entries based on the emergency aid exception, like Evans v. United States, 122

A.3d 876 (D.C. 2015) and Washington v. United States, 585 A.2d 167 (D.C. 1991),

are distinguishable on their facts, and (2) cases in which we have upheld such

9
In the fourth nonbinding case cited by the majority opinion, United States
v. Barone, the Second Circuit held long before Payton or Brigham City that the
police were authorized to enter an apartment after hearing screams from inside.
330 F.2d 543, 544 (2d Cir. 1964). But even in that case, the police had greater
cause for concern: after knocking on the door, they were asked repeatedly by a
male voice to identify themselves, but they were then greeted at the door by a
woman with no sight of the man. Id. at 545. In this case the police heard yelling
―as if‖ a woman was struggling and in pain and then were greeted at the door by a
woman and saw another woman behind her in the apartment. The police had no
reason to believe anyone else was in the apartment.
 31

warrantless entries, like Oliver, 656 A.2d 1159, actually demand very little

information when applying the probable cause standard. These efforts are

unpersuasive.

It is immaterial that the facts of Evans and Washington do not mirror the

facts of this case. The salience of these decisions comes from this court‘s refusal

to endorse surmise and speculation as a basis for warrantless entry under the

emergency aid exception. In Evans, the police tried to search an apartment when

the only two known occupants, ―participants in an alleged domestic violence

dispute,‖ were already outside being interviewed by other officers. Ante at 12. But

this court found a Fourth Amendment violation because ―the police had no specific

reason to believe that an unknown third party was in the apartment and in need of

emergency aid.‖ Evans, 122 A.3d at 882. The same is true is in this case. Upon

seeing two women through the open apartment door, the police had no reason to

believe that there was a third person inside who either might be in need of

assistance or might place the two women in imminent danger. Supra note 9.

In Washington the police actually had more particularized information than

they had in this case about the potential danger: they were responding to a report
 32

of a woman with a gun and the defendant‘s sister, having let them into the home,

told them she wanted the gun ―out of the house.‖ 585 A.2d at 168. Nevertheless

this court held that, once the police had seen that the sister was ―in the living room

by herself, out of harm‘s way,‖ they no longer had ―specific articulable facts‖ to

believe that anyone was in immediate danger such that they were authorized to

break down the door to the defendant‘s separately locked room and make a

warrantless entry. 10 Id. at 172. The court held the police should have ―ceased their

search immediately, or inquired into the nature of the weapon and the reason [the

sister] called the police before proceeding.‖ Id. Washington reaffirms both that

the police may not rely on a speculative need to provide emergency aid to enter a

home without a warrant and that when the police obtain information that

contradicts or does not meaningfully buttress their speculation that someone is in

need of emergency aid or imminent danger, they cannot simply plow forward,

10
Quoting an earlier part of the court‘s opinion addressing a different
exception to the warrant requirement (not the emergency aid exception later
discussed), the majority opinion suggests that this court‘s holding in Washington
was narrower—that the court only determined that the police once in defendant‘s
bedroom could not proceed to search the room after they saw the defendant sitting
with her son on the bed. Ante at 12-13; 585 A.2d at 170. Even if this had been the
court‘s holding, it would support suppression in this case, given that the police in
this case likewise saw nothing once the apartment door opened to substantiate their
suspicion that any one was in need of emergency aid. In fact, however, as
discussed above, when conducting its analysis under the emergency aid exception,
this court expressly held that the forcible entry into the defendant‘s bedroom was
not authorized.
 33

entering first and asking questions later. They must abide by the constraints of the

Fourth Amendment and conduct any continuing investigation from the threshold.

Washington and Evans do not stand alone in our case law in affirming that

the emergency aid exception to the warrant requirement is narrowly interpreted and

reserved for situations where the police have probable cause to believe there is a

true emergency. Indeed, the majority opinion has no choice but to concede that the

argument that our prior cases have demanded ―stronger grounds to believe that

emergency aid was needed . . . has some force.‖ Ante at 14-15 (discussing Booth,

455 A.2d 1351, and Earle v. United States, 612 A.2d 1258 (D.C. 1992), and

acknowledging ―each of these cases has indicia of exigent circumstances not

present in this case, such as the observation of blood on an occupant or the

observation of physical injuries being inflicted inside the dwelling.‖). But the

majority opinion looks to Oliver v. United States, 656 A.2d 1159, 1167 (D.C.

1995), to demonstrate that the requisite probable cause showing to believe

someone is in need of emergency aid is not as demanding as this body of precedent

indicates. Ante at 16 (citing Oliver for the proposition that this court has ―upheld a

warrantless entry under the emergency aid exception, without any evidence that the

police observed blood or physical injuries before entering the dwelling.‖). Oliver,

however, does not support the majority opinion‘s loose interpretation of the
 34

emergency aid exception to the warrant requirement: Oliver provides more

authority to call this interpretation into question.

In Oliver, the police were investigating the kidnapping of an eighteen-day

old infant from a hospital; over the course of a day of investigation, including two

visits to the defendant‘s apartment, they developed information that gave them

probable cause to believe that the ―helpless and defenseless‖ newborn boy was

there. 656 A.2d 1167. In that context—where the police knew a crime had been

committed, they had a suspect, and the only question was whether the victim, a

newborn baby, could be said to be in need of emergency aid so as to justify the

police‘s warrantless entry into the apartment to retrieve him—the court

acknowledged that ―it is true that this case is unlike the typical emergency

exception where blood at the scene, gunshots, or cries for help will give police

‗probable cause, based on specific, articulable facts, to believe that immediate

entry is necessary to assist someone in danger of bodily harm.‘‖ Id. The court

then explained that the departure from this norm was justified by ―the unique

qualities of kidnapping‖ which ―may create exigent or emergency circumstances,

even without direct evidence of a threat of bodily harm to the victim.‖ Id.

(explaining that ―kidnapping investigations present unusually compelling

circumstances for emergency analysis‖ because ―the life, freedom, and future of a
 35

human being is at stake‖ and that kidnapped infants ―in particular‖ are especially

vulnerable). Far from dispensing with the requirement that the police need ―direct

evidence of a threat of bodily harm‖—like ―blood at the scene, gun shots or cries

for help‖—to justify a warrantless entry under the emergency aid exception, Oliver

confirms that in cases that do not involve kidnapping, such ―direct evidence‖ is

required. Oliver demonstrates that the search in this case was unlawful.

Without precedent from this court, the majority opinion tries to find support

for its expansive interpretation of the emergency aid exception in the Supreme

Court‘s statement that the ―role of a peace officer includes preventing violence and

restoring order, not simply rendering first aid to casualties.‖ Ante at 10, 16 (quoting

Michigan v. Fisher, 558 U.S. 45, 48 (2009) (quoting Brigham City, Utah v. Stuart,

547 U.S. 398, 406 (2006))). But Michigan v. Fisher provides a dubious foundation

for the majority opinion‘s holding, given that the police in that case actually

observed ―violent behavior.‖ Specifically, the police saw (first through a window,

then through an open door) that Mr. Fisher was ―rag[ing],‖ ―screaming and

throwing things‖ inside his house and had already cut his hand, leaving blood on

the hood of his truck. Id. at 45, 48. Based on these observations, the Supreme

Court determined that ―it was reasonable [for the police] to believe that [Mr.]

Fisher had hurt himself . . . and needed treatment that in his rage he was unable to
 36

provide,‖ or that he ―was about to hurt . . . someone else.‖ Id. at 49. Similarly, in

Brigham City, the only other case in which the Supreme Court has upheld a

warrantless entry under the emergency aid exception, the police observed a fight in

the house through a kitchen window and saw one individual get punched in the

face and then spit blood in the sink while others in the room attempted to restrain

the assailant from continuing the attack. 547 U.S. at 401. The majority opinion

cannot credibly assert that the Supreme Court‘s conception of the emergency aid

exception to the warrant requirement encompasses the warrantless, nonconsensual

entry into Mr. Ball‘s apartment.

By affirming a warrantless home entry in this case based on nothing more

than speculation and forward momentum, the majority opinion is redrawing the

boundaries of Fourth Amendment protection for the home and diminishing its

protection. The majority opinion denies this, asserting that its fact-specific

analysis is ―narrow.‖ Ante note 7. But given that the facts it cites do not support—

either on their own terms or under our case law—a determination that the police

had probable cause to believe anyone in Mr. Ball‘s apartment was in need of

emergency aid, I cannot agree. I see no limiting principle to the majority opinion‘s

analysis. Rather, it effectively endorses the use of the emergency aid exception to

justify warrantless investigative searches of homes.
 37

The rationale for this retrenchment of Fourth Amendment protections for the

home appears to be that the right to privacy must yield to the needs of law

enforcement to prevent crime.11 But the Supreme Court has already rejected such

overreaching reasoning in the investigative context:

The investigation of crime would always be simplified if
warrants were unnecessary. But the Fourth Amendment
reflects the view of those who wrote the Bill of Rights
that the privacy of a person‘s home and property may not
be totally sacrificed in the name of maximum simplicity
in enforcement of the criminal law.

Mincey, 437 U.S. at 393. This limit on police powers cannot be circumvented in

the name of hypothetical crime prevention.

11
The majority opinion asserts that ―[a]ppellant and the dissent argue that
the police could have and should have obtained a warrant before entering his
apartment‖ and in so doing ―conflate the emergency aid exception with rationales
underlying the other exigent circumstance exceptions.‖ Ante at 17. I take no
position as to whether the police could have obtained a warrant. My point is that
they had no authority to enter Mr. Ball‘s home without one. And this
determination is not based on any ―conflation‖ of exceptions to the warrant
requirement; it is premised on the constitutional rule that if the police do not have
consent and do not legitimately fall under any exception to the warrant
requirement, they cannot enter a home without a warrant. Supra at 22-33.
 38

The majority opinion gives too little regard to the ―precious‖ protection the

Fourth Amendment affords the home against intrusion by government agents.

Washington, 585 A.2d at 168. Courts bear the responsibility to set limits to ensure

that the goals of law enforcement and peace keeping do not automatically override

Fourth Amendment protections afforded to the home. Until now, this court has

consistently held that more than speculation, if not actual evidence of injury or

imminent danger, is required to support a determination that the police had

probable cause to enter a home without a warrant to provide emergency aid. We

should adhere to this precedent—not redraw the boundaries of this previously

narrow exception to the warrant requirement so as to authorize an otherwise illegal

entry. We should hold that the warrantless, nonconsensual search in this case was

invalid. And we should uphold Mr. Ball‘s Fourth Amendment privacy rights in his

home. I respectfully dissent.