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United States v. Calhoun

United States District Court, D. Connecticut

March 21, 2017

UNITED STATES
v.
SHANNON CALHOUN

          AMENDED RULING AND ORDER ON MOTION TO SUPPRESS

          Stefan R. Underhill United States District Judge.

         On the evening on April 13, 2016, several Bridgeport police officers breached the apartment where Shannon Calhoun was staying without first obtaining a warrant. They assert that their otherwise unlawful entry was justified by exigent circumstances. While in the apartment, officers identified various items of contraband, including a gun, a large amount of cash, and a baggie of what appeared to be cocaine.[1] The officers arrested Calhoun and later obtained a search warrant for the apartment on the basis of, inter alia, the contraband they had identified. A subsequent search pursuant to the warrant uncovered several firearms, ammunition, quantities of various controlled substances, and other indicia that Calhoun was involved in the drug trade. On the basis of that evidence, Calhoun was indicted for possession with intent to distribute cocaine base and MDMA in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); and unlawful possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Calhoun moved to suppress the government's evidence against him. (doc. 31) A suppression hearing was held on February 7, 2017, and the parties submitted post-hearing briefs thereafter.

         On February 16, 2017, I issued a Ruling and Order granting Calhoun's motion to suppress in full. (doc. 53) The government subsequently filed a motion for reconsideration of that ruling, raising issues that had not previously been considered. (doc. 61) That motion is granted; the result of that reconsideration, however, is this Amended Ruling and Order (replacing doc. 53) in which I again conclude that all of the evidence uncovered during the warrantless search should be suppressed.

         A. Burden of Proof

         “[T]he burden of production and persuasion generally rest upon the movant in a suppression hearing.” United States v. Arboleda, 633 F.2d 985, 989 (2d Cir. 1980) (collecting cases). “In a motion to suppress physical evidence, the burden of proof is initially on the defendant. Once the defendant has established some factual basis for the motion, the burden shifts to the government to show that the search was lawful.” United States v. O'Neill, 2016 WL 6802644, at *8 (W.D.N.Y. Nov. 17, 2016) (citation omitted). “The standard of proof on the party who carries the burden is preponderance of the evidence.” Id. Accordingly, the government has the burden to show that exigent circumstances justified the initial entry and search. See United States v. Lopez, 723 F.Supp. 229, 234 (S.D.N.Y. 1989).

         B. Findings of Fact

         Around 10:16 p.m.[2] on April 13, 2016, two people called 911 to report shots fired in the vicinity of a CVS Pharmacy in Bridgeport, CT. Recording of 911 Calls, (Gov't Ex. 2). The second caller also stated that a man had threatened a woman in the parking lot, and had broken the window of her car using a gun. The second caller asserted that she fled after the assault took place and she heard shots fired in the area behind her. She described the aggressor as a stocky black man in dark clothing, and stated that after he broke the car window he drove away in a black BMW. (Gov't Exs. 2, 49) Around the same time, an off-duty police officer who lived in the area called the Bridgeport Police Department to report that she heard shots fired and then saw a black sports-utility vehicle drive quickly away from the area. (Gov't Ex. 49); see also (Azevedo Test.). When an officer arrived at the CVS shortly thereafter, the owner of the car that had been attacked identified the aggressor as Shannon Calhoun, and provided the officer with the license plate number for his car as well as Calhoun's address, 49 Ridgewood Place, which was approximately one block away. (Gov't Exs. 52, 53, and 54); see also (Martinez Test.). The car was also registered at 49 Ridgewood Place.[3] None of the people interviewed at the CVS indicated that Calhoun had been shot or was otherwise seriously injured, beyond the potential injuries to his hand sustained as a result of punching through a car window.[4] See (Gov't Exs. 53 and 54).

         Officers Diaz and Ortiz arrived at 49 Ridgewood Place approximately five minutes[5] after the 911 calls. See Recording of Police Channel One (Gov't Ex. 1); Police Incident Report (Gov't Ex. 49). A black BMW sedan was located outside of 49 Ridgewood Place (Gov't Ex. 6), [6] and an officer confirmed that the hood of the car was warm, indicating that the car had recently been driven, see (Gov't Ex. 1). A few minutes after locating the car, officers at the scene also identified a small amount of blood in the front portion of the driver's seat of the car, on the console, and on the gear shift. See (Gov't Exs. 7 and 8) (depicting a small amount of what appears to be blood on the gear shift, console, and driver's seat); see also (Gov't Ex. 49) (indicating a report of “fresh blood in front seat of [the BMW]”). Specifically, the officer who first reported seeing blood in the car over Channel One stated that there was “not a lot, only a couple of drops.” (Gov't Ex. 1) Shortly thereafter, an officer stated that it was “definitely the suspect's vehicle.” Id. An officer then identified Shannon Calhoun as “the suspect” over Channel One. Id.

         Officer Blackwell responded to the call of shots fired, and arrived at 49 Ridgewood Place shortly thereafter. He was informed by officers already at the scene about the incident at the CVS involving the black BMW parked outside of the residence. (Blackwell Test.) He observed a few drops of what appeared to him to be “fresh blood” in the front seat of the car. Id. Blackwell and the other officers at the scene spent approximately fifteen minutes searching the area for shell casings. See (Gov't Ex. 49); (Blackwell Test.). No casings were found; however, in the course of that search, the officers discovered a single drop of what appeared to be fresh blood on the sidewalk approximately seven feet from the car, and three additional drops of blood on the porch outside the door of 49 Ridgewood Place. See (Gov't Exs. 11-13) (depicting drops of blood on sidewalk and porch). There was also a small amount of blood on the door handle and screen door of the residence. See (Blackwell Test.); (Borona Test.) (describing the blood as a “smudge”). Blackwell saw a light on in the second floor of the residence. He pounded on the door and announced the police presence for approximately five minutes, receiving no response. Neither Blackwell nor any other officer appears to have heard any noises from the residence or seen any indication of property damage or disruption other than the few small spots of blood.

         Detective Borona also responded to the shots fired call. (Borona Test.) He initially went to the CVS, and arrived at 49 Ridgewood Place while Blackwell was pounding on the door of the residence. Id. Borona viewed the drops of blood inside the car and on the sidewalk, and very shortly thereafter asked his sergeant for permission to breach the residence.[7] Specifically, he stated that there was blood leading from the BMW to the residence, a possible injured party inside, and he thought that he had “exigency.”[8] See (Gov't Ex. 1). He breached the door and entered with a canine unit, followed by Blackwell.[9] (Blackwell Test.) Borona commanded any people in the residence to come out with their hands up.[10] (Borona Test.) Calhoun came out into the main hallway of the apartment with his hands up and was forced to the ground. See (Blackwell Test.); (Borona Test.) He had a bloody cut on his finger. Blackwell detained Calhoun with handcuffs and conducted a pat-down of Calhoun's person. (Blackwell Test.) The Incident Log indicates that Calhoun was arrested at or around 10:38 p.m., approximately two minutes after the breach and 20 minutes after the initial report of shots fired. See (Gov't Ex. 49); (Borona Test.) (confirming that approximate timing).

         The officers then conducted a protective sweep of the residence. The government witnesses provided conflicting testimony regarding the precise sequence of that sweep. Both Blackwell and Borona stated that they observed additional blood on the floor of the bathroom. Blackwell asserted that he looked past the door of the front bedroom to assess whether any threats or people needing assistance were present, and observed a large amount of money and what appeared to be a small bag of narcotics on the bed. (Blackwell Test.)

         Borona also asserted that he conducted a protective sweep of the front bedroom, and stated that in the course of his sweep he saw “packaging material” on the bed. Borona subsequently clarified that “packaging material” referred to narcotics. (Borona Test.) He did not recall seeing Blackwell do a sweep of the front bedroom. Borona initially testified that he did not enter any of the other rooms because at that point he knew no one else was in the apartment. Another officer, however, testified that Borona was in the kitchen apparently after the scene had been secured. (Amato Test.) And when Borona was confronted with his inconsistent previous statement to the government that he had also seen a firearm with what appeared to be blood on it on the floor of a closet in the back bedroom, see (Gov't Exs. 26 and 28) (depicting gun in closet), Borona explained that he had seen that weapon during “a walk-through” conducted “after the scene had been secured.” (Borona Test.) Borona then explained that the weapon had been identified by other, unidentified officers during the initial protective sweep.

         Detective Martinez also testified that he was called to the residence because officers had located a firearm, and that he was called to the scene to conduct a walk-through after the need for a protective sweep had ended in order to prepare a search warrant affidavit. (Martinez Test.) The gun that Martinez testified to having seen in the closet did not have blood on it. Id. He also testified that during the subsequent search conducted after the officers obtained a warrant, a different gun with blood residue on it was found, but he asserted that gun could not have been found in plain view. Id.

         Sergeant Amato, a Gang Intelligence Sergeant who worked as a liaison to the State Police, heard the shots-fired call while doing unrelated paperwork. (Amato Test.) Amato testified that he decided to respond to the scene after hearing that Calhoun had been identified as the “suspect” because Amato had had extensive previous dealings with Calhoun and thought he could offer assistance in identifying Calhoun if needed. Amato arrived after the scene was secured. See (Gov't Ex. 49). When he entered he saw Borona and Blackwell in the kitchen supervising Calhoun, who was in handcuffs. (Amato Test.) Amato also entered the front bedroom and saw narcotics and money on the bed, although he did not suggest that observation was made in the course of a protective sweep. Amato commented to Calhoun that it was “amazing that a domestic finally caught him, ” and then left the premises because it was “not his case.” Id.

         Apparently at the conclusion of the protective sweep, Borona reported over Channel One that Calhoun was in custody. (Gov't Ex. 1) A person who appears to be the dispatcher stated that medics were available, and on that suggestion, Borona asked that medics be directed to the residence, although he asked for them to “hold off” briefly. Id. Borona further reported that Calhoun was “all bloody” and that “narcotics and cash” had been seen in the residence. Id. Neither Borona nor any other officer reported seeing a gun over Channel One.

         None of the testifying officers (Blackwell, Borona, Martinez, or Amato) served as an affiant for the search warrant affidavit, although Martinez testified that he reviewed and approved the application. The warrant affidavit has both small and larger discrepancies from the officers' testimony at the hearing. See Warrant Aff., (Gov't Ex. 51) at 2-4. Most notably, it states that “the State Police Troop G reported that they received a call of a person shot at 49 Ridgewood Place, ” id. at ¶3, which call is also noted in the Police Incident Report, (Gov't Ex. 49); however, neither the Channel One recording nor any of the testifying officers indicated that report was relied on to assess the situation at 49 Ridgewood Place. The warrant affidavit also asserts that officers at the scene perceived “a heavy odor of marijuana” after they breached the door, which none of the testifying officers described at the hearing. Warrant Aff. at ¶ 7. With respect to the contraband identified in the course of the protective sweep, the warrant affidavit lists a “black handgun with blood on it, ” that was allegedly observed in an open closet, as well as cash and a clear plastic bag with what appears to be cocaine in it. Id. On the basis of that affidavit, the police obtained a search warrant for the residence. When executing the warrant, officers found the considerable additional contraband that forms the basis of the instant charges.

         Crime Scene Reports submitted on April 20, 2016 state that “a black handgun with blood on it” or a “gun” was found during a protective sweep. See Crime Scene Report Narrative at 1-2, (Gov't Ex. 51). One of those reports states that all of the contraband on the floor of the closet, including the visible gun, was “found by Detective Martinez, ” whom I note did not testify to his involvement in any protective sweep. Id. at 7. It is unclear from the report when that discovery is asserted to have taken place. Id.

         II. Discussion

         Calhoun challenges the government's evidence on three primary grounds: first, the officers' entrance into the residence was not justified by the exigent circumstances exception to the Fourth Amendment's warrant requirement, which the parties agree is the only exception that potentially applied; second, if the officers were lawfully on the premises, their search nevertheless exceeded the scope of a permissible protective sweep under Maryland v. Buie, 494 U.S. 325 (1990); and third, that the contraband items described in the warrant affidavit were not found pursuant to the plain view doctrine. The government disagrees with Calhoun's factual contentions, and further argues that even if the initial entrance of the officers was improper, any Fourth Amendment violation does not merit the application of the exclusionary rule.

         For the reasons discussed below, I determine that the officers' entry was not justified by emergency circumstances and thus was simply not permitted under the Constitution. Moreover, there are strong indications that Bridgeport police officers blithely exceeded the permissible scope of a protective sweep in order to find additional evidence in this case, and, more troublingly, that the Department may have a practice of doing so. Finally, suppression of the evidence at issue in this case cannot be avoided through the inevitable disclosure doctrine or good faith reliance on the search warrant. Rather, suppression is appropriate to avoid creating an incentive for officers to violate Fourth Amendment rights.

         A. Exigent Circumstances

         A warrantless entry into a home is presumptively unreasonable under the Fourth Amendment. See Welsh v. Wisconsin, 466 U.S. 740, 749 (1984); Payton v. New York, 445 U.S. 573, 586 (1980). An arrest within the home is “simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances . . . even when probable cause is clearly present.” Payton, 445 U.S. at 589. The government claims that the warrantless entry in this case was justified by exigent circumstances. The parties agree that the relevant exigency is described by the “emergency aid” doctrine, which has been articulated by the Supreme Court as follows:

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. This “emergency aid exception” does not depend on the officers' subjective intent or the seriousness of any crime they are investigating when the emergency arises. It requires only an objectively reasonable basis for believing that a person within the house is in need of immediate aid.

Michigan v. Fisher, 558 U.S. 45, 47 (2009) (internal citations omitted) (quoting, inter alia, Brigham City v. Stuart, 547 U.S. 398 (2006)). Thus, the defining characteristic of the emergency aid doctrine is the officer's objectively reasonable belief in an “urgent need to render aid or take action.”[11] Anthony v. City of New York, 339 F.3d 129, 135 (2d Cir. 2003) (internal quotation and citation omitted). The reasonableness of an officer's belief that the situation was sufficiently urgent “must be assessed in light of the particular circumstances confronting the officer at the time.” Kerman v. City of New York, 261 F.3d 229, 235 (2d Cir. 2001) (citing Graham v. Connor, 490 U.S. 386, 397 (1989)); see also United States v. Simmons, 661 F.3d 151, 157 (2d Cir. 2011).

         A closer examination of the facts in Fisher and Brigham City is instructive. In Fisher, officers responding to a complaint of a man “going crazy” inside of his residence arrived to find “a household in considerable chaos: a pickup truck in the driveway with its front smashed, damaged fenceposts along the side of the property, and three broken house windows, the glass still on the ground outside.” 558 U.S. at 45-46. In addition, officers may have seen blood on the hood of the car, on clothes inside the car, and on the door to the property. Id. at 46. Inside the house, officers could see Fisher “screaming and throwing things” and could see that he had a cut on his hand. Id. In Brigham City, officers responding to a noise complaint saw minors drinking outside a residence, heard shouting coming from inside, and then saw four adults attempting to restrain a juvenile. 547 U.S. at 401. They then witnessed the juvenile punch one of the adults in the face, and saw the victim “spitting blood into a nearby sink.” Id. “The other adults continued to try to restrain the juvenile, pressing him up against a refrigerator with such force that the refrigerator began moving across the floor, ” at which point the officers entered to intervene. Id.

         The Fisher Court identified three similarities between the facts in that case and in Brigham City supporting a “straightforward application of the emergency aid exception” in both cases: (1) the officers were “responding to a report of a disturbance;” (2) the officers encountered a “tumultuous situation” at the scene; and (3) the officers could see “violent behavior inside” that could have resulted in harm to the subject or others. Fisher, 558 U.S. at 48. Those three factors can be understood collectively as indications of an ongoing threat of violence. The Fisher Court also observed that the officers in that case had found “signs of a recent injury, perhaps from a car accident” outside the scene, and rejected the lower court's determination that those “mere drops of blood” were insufficient to signal a sufficiently serious injury. Id.

         In the present case, there was no indication of an ongoing threat. According to the testimony of the officers, at least fifteen minutes had passed since the reports of shots fired and the assault at the CVS. The officers had reason to believe that Calhoun, whom they identified as the “suspect” responsible for the disturbances several minutes before the breach, was inside his residence. During the period that the officers searched the area outside the residence-again, by Blackwell's testimony, a period of up to fifteen minutes-they heard no sounds coming from the residence and saw no signs of commotion or violence, and received no additional evidence of a person at risk-or even present-inside the home.

         The government's concession that the emergency aid doctrine, rather than other theories of exigency, is the operative one here provides an important insight into the situation. The government does not contend that the officers were in hot pursuit of Calhoun and chased him to his house. It is easy to look at these facts and be concerned by the ongoing threat Calhoun may have posed to the people he assaulted and threatened to kill at CVS or by the danger to the community when shots are fired. But despite the fact that Calhoun's actions at CVS were abhorrent and violent, that situation had ended by the time the officers arrived at his residence. Unlike in other emergency aid cases involving domestic violence, by the time the officers entered, Calhoun had voluntarily distanced himself from his victims, he was not continuing to show signs of rage, violence, or instability, and he did not threaten the police when they made their presence known. Cf. Anthony v. City of N.Y., 339 F.3d 129, 136 (2d Cir. 2003) (officers received a 911 call from that address from a woman who claimed to be under attack); Jackson v. City of N.Y., 29 F.Supp.3d 161, 175-76 (E.D.N.Y. 2014) (officers received a distress call including report of gun and heard screaming from inside the house); Hogan v. Buttofocco, 2009 WL 3165765, at *1 (N.D.N.Y. Sept. 28, 2009), aff'd, 379 F. App'x 35 (2d Cir. 2010) (officers received a 911 call reporting domestic violence from a child, the potential victims were still inside the house, the house was in disarray, and aggressor resisted arrest); see also City & Cty. of San Francisco, Calif. v. Sheehan, 135 S.Ct. 1765, 1767 (2015) (emergency aid doctrine justified warrantless entry into residence of armed mentally-ill person threatening anyone attempting entry).

         In the same vein, the reports of shots fired in the general area did not indicate an ongoing threat of violence at 49 Ridgewood Place. Contrary to the government's suggestion, the Fourth Amendment does not create a per se exception to the warrant requirement any time there is a report of shots fired nearby, even if the police believe they have located the person responsible for firing those shots; in every case, the totality of the circumstances must be examined. Cf. Williams v. Cty. of Alameda, 26 F.Supp.3d 925, 938-39 (N.D. Cal. 2014) (holding that although reports of domestic violence should be taken seriously, they do not per se constitute exigency); Harris v. O'Hare, 770 F.3d 224, 236 (2d Cir. 2014) (The “mere suspicion or probable cause for belief of the presence of a firearm does not, on its own, create urgency.”) (emphasis in original). In cases holding that a report of shots fired provided sufficient exigency to justify a warrantless entry, the officers had an objectively reasonable belief that victims would be found at that location because that was where the shots had been fired. See United States v. Ashburn, 2014 WL 1800409, at *5 (E.D.N.Y. May 6, 2014) (collecting cases that held emergency aid doctrine justified entry to search for shooting victims where there was evidence that shots had been fired, such as the presence of bullet holes and casings at the location); United States v. Gambino-Zavala, 539 F.3d 1221, 1225 (10th Cir. 2008) (collecting cases that held same, where there were bullet holes, casings, or reports of shots fired at the location). In the present case, by contrast, the evidence available to the officers on location at the time of the breach did not provide any indication that shots had been fired at the residence.[12] Instead, all of the available evidence suggested that Calhoun fired shots at a different location and then fled to his residence. The shots fired were reported before Calhoun drove away from the CVS, see (Gov't Ex. 2); there were no bullet holes visible on the residence or in the car; and after roughly fifteen minutes of searching, the officers had not found any casings in the area around the residence.

         Accordingly, the warrantless entry must be wholly premised on an objectively reasonable belief that Calhoun or someone else in the residence was in urgent need of medical attention or other police aid due to signs of recent injury outside of the residence. The government suggests that it was objectively reasonable for the officers to believe that Calhoun or someone else in the residence had suffered a gunshot wound based on the shots fired calls and the few drops of blood outside.

         I first address the possibility that there was a party at risk in the residence. At the hearing, the government suggested that its officers could have reasonably believed that Calhoun had shot a passenger in his car, perhaps taken that person hostage, and brought him or her into the residence. As in United States v. Simmons, 661 F.3d 151 (2d Cir. 2011), that speculative assertion is “untethered to any facts in the record.” Id. at 158-59. By the time of the breach, officers had spoken to the victims at CVS, who suggested that Calhoun may have hurt his hand on the car window, but did not suggest that he had shot himself or another party there, posed a specific risk of violence to another person, or had, in the aftermath of an ugly domestic dispute, also seen fit to undertake a kidnapping when driving the one-block distance from the CVS to his residence. As noted above, officers had examined the car and seen no evidence that a shooting had taken place inside of it, and the small amount of blood they could see in the car was on the front of the driver's seat and gearshift, not on any passenger seat where a kidnap victim would almost certainly have been held. And unlike in Fisher, where the Court held that officers could have reasonably believed Fisher's ongoing visible acts of violence were directed at other people in the residence, the officers in this incident were outside the residence for up to fifteen minutes without seeing or hearing any signs of commotion.

         The evidence of recent injury found outside the residence also was not sufficient to provide a reasonable belief of an urgent need for care. The government's witnesses stated that their decision to breach was based on the “trail of blood” leading up to the residence, but the evidence does not show such a trail existed. The government's photographic evidence shows at most six or seven small smears of blood on the front seat of the car, one drop on the sidewalk about seven feet away from the car, and three drops on the porch. When the officers first radioed in the discovery of blood in the car, they described it as “not a lot” of blood, did not call medics at that time, and did not attempt to breach. It apparently took several more minutes to locate the drops on the sidewalk and porch, and even after additional blood was located, officers did not call for medical support. Indeed, medics were apparently summoned only on the suggestion of a dispatcher after Calhoun and the residence had been secured. Additionally, those few drops of blood were not accompanied by any other indicia of urgency. In Fisher, the Court held that an officer could reasonably have concluded that the drops of blood on the car were the result of a recent car accident and that if Fisher was the injured party, he was “in his rage” unable to provide himself with care. 558 U.S. at 48-49; see also Lagasse v. City of Waterbury, 2011 WL 2709749, at *11 (D. Conn. July 12, 2011) (sufficient urgency when officers “observed through a partially opened door two bodies slumped over and unconscious on the floor” during what they believed was an ongoing burglary). Here, the officers had fairly strong evidence that the blood was the result of a cut to Calhoun's hand, and, at most, a theory that Calhoun might have accidently grazed himself with a bullet. They had no indication that he was in an ongoing rage that would prevent him from obtaining care for himself. To the extent that the officers relied on Calhoun's failure to respond to their requests for entry as a sign of urgency, they seem to forget that they had already identified Calhoun as a “suspect” in a recent violent assault and accordingly, his silence was far more likely to be a result of his desire not to be arrested.

         The emergency aid doctrine does not require “ironclad proof of a ‘likely serious, life-threatening' injury, ” Fisher, 558 U.S. at 49 (quoting Brigham City, 547 U.S. at 406), nor is a failure to immediately call for medics fatal to an emergency aid claim, see id.; nevertheless, the officers' objectively reasonable belief must be based on something more than speculation and the government has not shown that to be the case here. See Simmons, 661 F.3d at 158; see also Williams v. Cty. of Alameda, 26 F.Supp.3d 925, 938 (N.D. Cal. 2014) (“Defendants must point to ‘specific and articulable' facts which, taken together with rational inferences, support the warrantless intrusion.”) (quoting United States v. Howard, 828 F.2d 552, 555 (9th Cir. 1987)).

         In sum, I find that the officers' warrantless entry into 49 Ridgewood was not justified by the emergency aid doctrine. No reasonable officer at the scene could have believed that a medical emergency existed inside 49 Ridgewood Place-and I find that Borona's statement that he subjectively believed exigency existed was not credible. The government has not pointed to any other reason why a warrantless entry would be permitted in this case, nor did it provide evidence that it would have been impracticable to wait for Calhoun and arrest him upon his exit from the residence or to obtain a warrant for his arrest. Thus, for the foregoing reasons, I find the breach was a bad faith violation of the Fourth Amendment. For the sake of completeness, however, I will also discuss the scope of the officers' search within the residence before considering the implications of this finding for Calhoun's suppression motion.

         B. Scope of Search Incident to Emergency Aid

         Even if the officers had been entitled to enter the residence under the emergency aid doctrine, their search of the premises also appears to have exceeded the ...


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