State v. Ford

Reiber, C.J.,

¶22. dissenting. This case is about the proper scope of the emergency aid exception — an exception that recognizes those situations in which acting quickly to save lives takes priority over privacy interests. The majority holds today that when a police officer is informed of a serious car accident and sent to the accident victim’s last known address, the officer should sometimes risk leaving the victim dying in his home rather than investigating the situation further. The majority requires accident victims to leave visible signs, such as blood tracks or a wrecked vehicle, before a police officer, absent any evidence of pretense, can lawfully follow a path around a house and take a cursory look in a window for signs of a person thought to be injured. I would not read the emergency aid exception so narrowly. Although this is a close case, in my view the trooper’s actions here were justified by the fact that she was responding to a recognized emergency and had no reason to believe that the emergency had dissipated. I therefore dissent.

¶23. A number of courts have recognized that 9-1-1 calls reporting an emergency “can be enough to support warrantless searches.” United States v. Richardson, 208 F.3d 626, 630 (7th Cir. 2000) (citing cases). This is particularly true when the caller has identified himself. Id.; see also, e.g., State v. Matthews, 2003 ND 108, ¶ 18, 665 N.W.2d 28. When an identified 9-1-1 caller reports an emergency, “[t]he efficient and effective use of the emergency response networks requires that the police (and other rescue agents) be able to respond to such calls quickly and without unnecessary second-guessing.” Richardson, 208 F.3d at 630. We have similarly stated that police officers must respond quickly and thoroughly to reported emergencies:

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.

State v. Mountford, 171 Vt. 487, 493, 769 A.2d 639, 646 (2000) (quotation and internal citation omitted).

*30¶ 24. In my view, the trial court correctly concluded that the trooper acted reasonably, and there was, therefore, no violation of defendant’s privacy interests. Although in retrospect we know that there was not an injured person in defendant’s home and that there might not have ever been an actual emergency, these facts were not known to the trooper at the time she arrived at defendant’s home. Though such hindsight may be clear today, it cannot affect our analysis. See, e.g., Hunsberger v. Wood, 570 F.3d 546, 555 (4th Cir. 2009) (holding that although it turned out that no one was actually in danger, “we cannot judge [the trooper’s] search based on what we know in hindsight,” because “[a]t the time of the search, there was reason to think [someone] needed help”). Here, the police had received a 9-1-1 call stating that there had been an accident. The accident victim identified himself and said that he was trapped in his car. When an emergency rescue crew was unable to locate anyone where the accident had reportedly occurred, the police followed standard operating procedures and dispatched a trooper to the victim’s last known address. When the trooper arrived at the home, she saw footprints in the snow leading to the back of the building. She followed those footprints. After several attempts at knocking and announcing her presence, but hearing no reply, she concluded that an injured person might be unconscious or otherwise incapacitated and therefore unable to answer the door. To determine whether there was a seriously injured person inside the house, she peered through a window.

¶ 25. The trial court held that each step that the trooper took was reasonable. The majority reaches a different conclusion today based upon its finding that “the trooper testified to nothing that would justify a ‘reasonable belief’ that the motorist was inside and in need of immediate assistance.” Ante, ¶ 17. The majority’s conclusion rests primarily on the following two weaknesses in the State’s argument: (1) the trooper traveled to a location that was “at least forty miles” from the reported location of the accident, ante, ¶ 17; and (2) upon arriving at the scene, the trooper failed to discover additional “evidence supporting a reasonable belief that there was an immediate need for emergency assistance in those areas,” ante, ¶ 17 n.2. Although I agree that these facts make this a close case, we have previously noted that in close cases “we should be deferential” to the trooper’s evaluation of the situation. Mountford, 171 Vt. at 493, 769 A.2d at 646. The majority goes too far in holding that these facts support reversing the trial court’s decision.

*31¶ 26. Distance between the reported location of the accident and the area searched does not necessarily make the search unreasonable. In Matthews, for instance, the court upheld the application of the emergency aid exception when police officers searched a residence in Fargo, North Dakota, even though the 9-1-1 call in that case reported that the emergency was occurring a number of miles away in Horace, North Dakota. 2003 ND 108, ¶ 19. The inquiry turns on whether the officer had a reasonable belief that a seriously injured person was in the home. See, e.g., id. ¶¶ 43-44 (holding that when police officers responding to an emergency “could have . . . reasonably believed there remained a possibility that [people] may have been inside the house,” and entered the house to confirm or dispel this belief, the “scope of the search was reasonable in view of its objectives”). Here, the trooper responding to a reported emergency had a reasonable belief that emergency assistance may have been needed at defendant’s home. This belief was supported by the underlying 9-1-1 call reporting a serious accident involving a vehicle off the road without details as to its precise location, combined with the failure of several emergency rescue teams to find the named victim. Based upon this information, the officer could reasonably conclude that the victim might have found his way home, but was still in need of medical assistance. Indeed, that is precisely why police protocol requires a welfare check at the last known residence of someone who is reported as injured.

¶27. Because the trooper already had a reasonable belief that an emergency existed when the trooper arrived at defendant’s home, the trooper did not need to discover additional “evidence supporting a reasonable belief that there was an immediate need for emergency assistance” at the house. Ante, ¶ 17 n.2. As the United States Supreme Court recently stated, “[o]fficers do not need ironclad proof of a likely serious, life-threatening injury to invoke the emergency aid exception.” Michigan v. Fisher, _ U.S. _, _, 130 S. Ct. 546, 549 (2009) (per curiam) (quotation omitted). Similarly, other courts have rejected the requirement that additional evidence — beyond the existence of a recognized emergency — is required before police officers can respond to these emergencies. See, e.g., Schreiber v. Moe, 596 F.3d 323, 331 (6th Cir. 2010). In Schreiber, the court held that the emergency aid exception applied even though “this case lack[ed] some of the more outward manifestations of violence that often support a *32finding of exigency,” such as “signs of blood, broken objects, or gunfire.” Id. (citations omitted). The court noted that blood stains or other outward manifestations of violence “are not prerequisites to a finding of exigency.” Id.) accord State v. Fausel, 993 A.2d 455, 465 (Conn. 2010) (“Direct evidence of an emergency is not required . . . .”). The New York Court of Appeals came to a similar conclusion in People v. Mitchell, 347 N.E.2d 607 (N.Y. 1976), abrogated as applied to Federal Constitution by Brigham City v. Stuart, 547 U.S. 398 (2006). The Mitchell court created the three-part test that we later adopted in Mountford, 171 Vt. at 490-91, 769 A.2d at 644. The Mitchell court explicitly rejected the idea that “obvious signs which connect the place to be searched with the emergency, for example, screams or the odor of a decaying corpse” were needed to invoke the emergency aid exception, and the court held that the emergency aid exception applied in that case even though “no such apparent clues were found.” 347 N.E.2d at 610.

¶28. The majority cites Mountford for the proposition that a lack of a response from the trooper’s knocking “was insufficient to support a belief that anyone was inside the house or that there was an immediate need for medical attention.” Ante, ¶ 17. That is, of course, true, but here the trooper’s belief rested on much more than a lack of response. The trooper was responding to a 9-1-1 emergency call reporting a serious accident, and the reported victim could not be found. The trooper was sent to perform a welfare check to determine whether the accident victim had returned home and whether he was in need of medical attention. As discussed, these circumstances in themselves created a reasonable belief that a seriously injured person was in the house. A lack of response to the trooper’s knocking is perfectly consistent with the reasonable belief that the accident victim may have returned home and may have been too injured to answer the door. At that point, the trooper was justified in entering the curtilage and looking through a window to see if an injured person was in the house. Cf. United States v. Barone, 330 F.2d 543, 545 (2d Cir. 1964) (upholding a warrantless search under the emergency aid exception when the “investigation . . . would have been incomplete *33without finding out . . . whether anyone there might be in need of aid”).3

¶ 29. Because the trooper did not need any additional evidence to carry out the limited search she performed, it is irrelevant whether the record established that the footprints in the snow were recent. The important thing is that the record did not establish a complete lack of footprints in the snow or anything else that would dissipate the reasonable belief that the trooper had when she arrived on the scene.

¶ 30. The only relevance the footprints could possibly have is to provide additional support for the trooper’s reasonable belief that an injured person was in the home. The trial court made a factual finding that the trooper had seen “recent footprints leading to the basement door.” The majority recognizes that our review of the trial court’s factual findings is deferential. Ante, ¶ 7. Further, given that the State was the prevailing party below, we can only overturn the trial court’s factual findings if, taking all of the evidence in the light most favorable to the State and excluding all modifying evidence, “there is no reasonable or credible evidence to support them.” State v. Rheaume, 2005 VT 106, ¶ 6, 179 Vt. 39, 889 A.2d 711 (quotation omitted).

¶ 31. In light of this highly deferential standard, I cannot agree with the majority’s conclusion that the trial court had “no evidence to support the finding that the footprints or entry into the residence were recent.” Ante, ¶ 8. The existence of “footprints in the snow” is often cited as the preeminent illustration of how a reasonable inference can be made from circumstantial evidence: “when footprints are discovered after a recent snow, it is certain that some animated being has passed over the snow since it fell.” Commonwealth v. Webster, 59 Mass. 295, 312 (1850); see also Commonwealth v. Zehner Bros. Farm Prods., 70 Pa. D. & C.2d 501, 508 (Ct. Common Pleas 1972) (referring to this passage from Webster as “the most vivid and well-known illustration of circumstantial evidence”). Although the trooper might not have stated *34how fresh the snow was, it seems to me that in a state like Vermont, where snowfall is a regular occurrence during the winter months, it is reasonable for a trooper to assume, without declaring, and especially in an emergency, that footprints in snow are either recent enough to bear following or not necessarily so old as to be irrelevant. Indeed, that this is obvious may have led the trooper not to state it directly in her testimony — most Vermonters simply take it for granted that, because it snows so often during the winter, footprints in the snow are not necessarily old. For that matter, even if footprints appear old, it is not uncommon for people to retrace and step into existing footprints in snow to avoid having to break new trail.

¶ 32. To the extent that there is any debate over the recentness of the footprints, “we should be deferential” to the trooper’s evaluation of the situation in response to an emergency. Mountford, 171 Vt. at 493, 769 A.2d at 646; accord, e.g., State v. Frankel, 847 A.2d 561, 568 (N.J. 2004) (“[T]hose who must act in the heat of the moment do so without the luxury of time for calm reflection or sustained deliberation.”). Here, it was reasonable for the trooper to expect that the footprints could lead to another door where an injured person could have entered — all consistent with the supposition that an injured accident victim, not found at the scene of a reported accident, could be inside his home. Police officers routinely make quick decisions based on the existence of footprints in snow, and courts have consistently upheld such actions. See, e.g., People v. Clark, 547 P.2d 267, 271 (Colo. App. 1975) (holding that when footprints in snow at recent crime scene led to apartment building where defendant lived, warrantless entry of home and search for boots was proper, as wetness of boots would be highly probative evidence in need of preservation).

¶ 33. This case is not the first time police officers have entered private property in response to a 9-1-1 call that later turned out not to have been an actual emergency, and other courts have routinely upheld such actions. See, e.g., State v. Macelman, 834 A.2d 322, 327 (N.H. 2003); Frankel, 847 A.2d at 576. In Macelman, the New Hampshire Supreme Court held that the emergency aid exception applied to police actions premised on far fewer facts indicating an emergency than the investigatory actions that occurred here. The apparent emergency in Macelman arose from an anonymous tip reporting that a car was behind the defendant’s residence and looked as if it might go over an *35embankment. When the officers arrived on the scene, their view of the vehicle was obstructed. The officers knocked on the defendant’s front door, but received no response. They then entered the defendant’s backyard and approached his vehicle to see if the vehicle’s occupants needed any assistance. At this point, the officers saw smoke and other indications of marijuana use and arrested defendant. It turned out that the vehicle was on a flat part of the yard and had a fence between it and the embankment. Nevertheless, because the officers could not see that the vehicle was safe until they approached it, the court held that “under the ‘emergency aid’ exception to the warrant requirement the police were entitled to enter the property and to approach the car to confirm or dispel their reasonable belief that an emergency existed.” 834 A.2d at 328. As the court noted, the requirement of a reasonable belief “is a lower standard than the probable cause required for an ordinary search or seizure.” Id. at 326.

¶ 34. Similarly, in Frankel, a dispatcher received a 9-1-1 call from the defendant’s house, but no one was on the line, and when the police called back they received a busy signal. An officer then went to the defendant’s home to perform a welfare check. When the officer arrived, the defendant denied having made a 9-1-1 call. The officer observed that the defendant was nervous and that a lawn chair propped against a door might have been placed in such a way as to form an obstacle to someone trying to leave the house. Believing that the defendant might be hiding a victim in his house, the officer called for backup and entered the home without a warrant. There was no victim in the house, but the officer’s limited search did reveal a number of marijuana plants and grow lights in plain view. The defendant filed a motion to suppress and argued that the officer’s warrantless search violated his constitutional rights. The New Jersey Supreme Court affirmed the denial of the motion and held that the officer’s actions fell under the emergency aid exception to the warrant requirement. 847 A.2d at 576. The court recognized that this was a “close case,” and that “[t]he sanctity of one’s home is among our most cherished rights,” but nonetheless held that in these circumstances “the duty to preserve and protect life and the need to act decisively and promptly must outweigh the privacy interests of an individual.” Id.; accord, e.g., Mitchell, 347 N.E.2d at 611 (“Constitutional guarantees of privacy and sanctions against their transgression do not exist in a vacuum but must yield to paramount *36concerns for human life and the legitimate need of society to protect and preserve life”).

¶ 35. In summary, this case is about how far police officers can go in responding to recognized emergencies. In my view, the Arizona Supreme Court had it right when it noted that “we do not want to deter police officers from engaging in searches for persons in distress.” State v. Fisher, 686 P.2d 750, 763 (Ariz. 1984). Many courts have gone further and have held that we cannot deter such conduct because there is a “general obligation of police officers to assist persons whom they reasonably believe are in distress.” Id. at 760 (citing cases); accord, e.g., Frankel, 847 A.2d at 574 (“Courts are loath to second-guess decisions made in good faith with the intent of protecting life when the circumstances clearly reveal a legitimate emergency that will not abide delay”). Under the majority’s limited interpretation of the emergency aid exception, police officers are now asked to ignore this general obligation and risk leaving injured people undiscovered rather than briefly and logically investigating the situation further. That is not the message that I would send to our law enforcement officers. For these reasons, I respectfully dissent.

¶ 36. I am authorized to state that Justice Burgess joins in this dissent.

Some courts have held that in these circumstances an officer is even justified in entering someone’s home to investigate a reported emergency. See, e.g., Matthews, 2003 ND 108, ¶ 20 (noting that various “jurisdictions have upheld a warrantless search in circumstances in which the presence of a person inside the searched dwelling was unknown at the time of entry”). We need not go that far here to hold that the trooper was justified in the limited search she performed from outside defendant’s home.