Johnnie Russell v. Ryan Comstock

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 24-1100

JOHNNIE E. RUSSELL,

Plaintiff-Appellant,

v.

RYAN COMSTOCK, COLIN POWELL, and

DAVE WOHLGEMUTH,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 21-cr-00151-JPS — J. P. Stadtmueller, Judge.

____________________

ARGUED SEPTEMBER 19, 2024 — DECIDED FEBRUARY 24, 2026

____________________

Before ROVNER, HAMILTON, and KIRSCH, Circuit Judges.

ROVNER, Circuit Judge. Johnnie Russell brought an action

under 42 U.S.C. § 1983 alleging that police officers of the Ra-

cine Police Department violated his Fourth Amendment

rights in the search of his apartment and vehicle. The defend-

ants sought summary judgment on the merits and on the

ground of qualified immunity. The district court granted

summary judgment on the merits in favor of the defendants.

2 No. 24-1100

Russell has appealed solely as to the grant of summary judg-

ment in favor of defendant Colin Powell regarding the war-

rantless search of his apartment.

In reviewing this appeal of the summary judgment deter-

mination, we consider solely the undisputed facts as set forth

by the parties in the district court below and those set forth in

Russell’s brief on appeal. On June 25, 2020, at approximately

1:10 p.m., Racine Police Department Officers were dispatched

to 1915 Washington Avenue, Racine, Wisconsin, for an assault

complaint. Officer Coca, who arrived at around 1:15 p.m., en-

countered Willie Cannon outside the building and learned

that he had been stabbed in the chest. Cannon identified John-

nie Russell as the person who stabbed him. The officers also

learned that both Cannon and Russell lived in the apartment

building at 1915 Washington, with Cannon in apartment 103

and Russell in apartment 202. Cannon was transported to As-

cension hospital.

Investigator Jody Spiegelhoff, Officer Colin Powell, and

Sergent Ryan Comstock arrived on scene around 2:30 pm, and

met with the building manager, Johnny Marvitz, who stated

that Russell parked his two vehicles along the east side of the

building. One of those vehicles was not presently there.

Marvitz further indicated that Russell lived in apartment 202

and that he was uncertain if Russell had gone back to his

apartment.

As Russell notes in his brief, prior to the sweep of Russell’s

apartment, Spiegelhoff told the other officers that he would

be seeking a warrant for apartment 202, but that the apart-

ment still needed to be secured to “make sure he’s not in

there, make sure he’s not hurt or anything.” Property man-

ager Jerome Howe offered to let them into the apartment, and

No. 24-1100 3

on the way up to the apartment Marvitz again confirmed with

the police what was to occur, stating “person-to-person wel-

fare check, I mean, we all understand each other here.” Howe

then unlocked the door to the apartment, and Powell con-

ducted the search that lasted only 37 seconds. Around the

same time, Spiegelhoff and Comstock secured Cannon’s

apartment by doing a sweep to ensure there was no one inside

who was injured related to the case. No persons were found

in either apartment at that time. The officers subsequently ob-

tained a search warrant for Russell’s apartment, and con-

ducted a thorough search of the apartment later that day pur-

suant to that warrant.

Russell challenges only the 37-second-long search of his

apartment. He does not challenge the thorough search con-

ducted hours later pursuant to the warrant, and does not con-

tend that anything seen in the earlier search contributed to the

warrant, nor does he challenge the granting of the search war-

rant itself. When asked at oral argument what damages he

could have as a result of that cursory sweep given his failure

to challenge the extensive search that followed, his counsel

pointed only to the potential for nominal damages and dam-

ages for emotional distress.

At the very core of the Fourth Amendment is the right for

a person to retreat into their own home and be free in that

home from unreasonable government intrusion. Payton v.

New York, 445 U.S. 573, 589–90 (1980). Warrantless searches

and seizures within a home are presumptively unreasonable,

but “this presumption may be overcome in some circum-

stances because the ultimate touchstone of the Fourth

Amendment is reasonableness.” (internal quotation marks

omitted) Kentucky v. King, 563 U.S. 452, 459 (2011).

4 No. 24-1100

Accordingly, the warrant requirement is subject to certain ex-

ceptions where the exigencies create a compelling need to act

and no time to secure a warrant, such as situations involving

hot pursuit of a fleeing suspect, the need to prevent the immi-

nent destruction of evidence, or the need to protect an occu-

pant from imminent injury or to render emergency aid. Id. at

459–60; United States v. Starnes, 741 F.3d 804, 807 (7th Cir.

2013).

In seeking summary judgment below, Powell contended

that the quick search of Russell’s apartment was a reasonable

search under the Fourth Amendment in order to protect

against any danger posed to officers or other persons in the

hallway outside the apartment, and in order to locate any per-

sons who might be injured within the apartment. Further-

more, Powell argued that even if the search was unconstitu-

tional, he possessed qualified immunity for his actions. In

granting summary judgment, the district court held that the

pre-warrant sweep of Russell’s apartment constituted a pro-

tective sweep that was reasonable under the Fourth Amend-

ment. Although characterizing it as a close case, the court con-

cluded that Powell could reasonably believe that a protective

sweep of the residence was necessary because: (1) the offense

at issue was a serious one involving violence; (2) Russell’s

whereabouts were unknown at the time of the search; (3) Rus-

sell’s residence was left unattended after the stabbing; (4) a

third, unknown person was visiting at the time of the stab-

bing, and he was unaccounted for; and (5) the search was lim-

ited in scope to the search for a person presenting a danger or

who was injured, lasting only 37 seconds. Dist. Ct. Order of

12/14/23 at 8–9.

No. 24-1100 5

Russell appealed that determination to this court. We re-

view a grant of summary judgment de novo, and can affirm a

district court’s decision on any ground that finds support in

the record as long as the parties had a fair opportunity to pre-

sent their arguments and evidence. Lexington Ins. Co. v. RLI

Ins. Co., 949 F.3d 1015, 1025 n.6 (7th Cir. 2020). On appeal, Rus-

sell again contends that the search was unconstitutional and

that Powell lacked qualified immunity.

We begin with the question of qualified immunity. The

doctrine of qualified immunity “’balances … the need to hold

public officials accountable when they exercise power irre-

sponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties rea-

sonably.’” Wood v. Moss, 572 U.S. 744, 758 (2014), quoting Pear-

son v. Callahan, 555 U.S. 223, 231 (2009). Accordingly, in civil

claims such as this one under § 1983 for money damages, gov-

ernment officials are shielded from personal liability so long

as their conduct “does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal

quotation marks omitted). “A clearly established right is one

that is ‘sufficiently clear that every reasonable official would

have understood that what he is doing violates that right.’”

Id., quoting Reichle v. Howards, 566 U.S. 658, 664 (2012). Exist-

ing precedent must have placed the statutory or constitu-

tional question beyond debate in order for a right to be clearly

established. Id. at 12. Furthermore, the Supreme Court has re-

peatedly admonished that the inquiry “’must be undertaken

in light of the specific context of the case, not as a broad gen-

eral proposition,’” and that “[s]uch specificity is especially

important in the Fourth Amendment context, where the

Court has recognized that ‘[i]t is sometimes difficult for an

6 No. 24-1100

officer to determine how the relevant legal doctrine … will

apply to the factual situation the officer confronts.’’ Id., quot-

ing Brosseau v. Haugen, 543 U.S. 194, 198 (2004) and Saucier v.

Katz, 533 U.S. 194, 205 (2001); see also Sabo v. Erickson, 128

F.4th 836, 844 (7th Cir. 2025) (en banc).

Where such cases do not clearly settle the right with suffi-

cient specificity to provide officials with fair notice that their

conduct violates that right, the court can proceed to dismiss

the case on that ground without ever proceeding to the merits

of the constitutional challenge. Camreta v. Greene, 563 U.S. 692,

705 (2011); Pearson, 555 U.S. at 236. In fact, the Supreme Court

has recognized that “our usual adjudicatory rules suggest that

a court should forbear resolving this [constitutional] issue. Af-

ter all, a ‘longstanding principle of judicial restraint requires

that courts avoid reaching constitutional questions in advance

of the necessity of deciding them.’” Camreta, 563 U.S. at 705

(emphasis in original), quoting Lyng v. Northwest Indian Cem-

etery Protective Assn., 485 U.S. 439, 445 (1988).

In allowing the courts discretion as to the matter, the

Court recognized numerous circumstances in which district

courts and courts of appeals might choose to address the qual-

ified immunity issue and forgo discussing the constitutional

claim on the merits. For instance, where “it is plain that a con-

stitutional right is not clearly established but far from obvious

whether in fact there is such a right,” the Court opined that

given scarce judicial resources, district courts and courts of

appeals might be understandably unenthusiastic about en-

gaging in an analysis of the claim on the merits in what would

seem to be an essentially academic exercise. Pearson, 555 U.S.

at 237. Similarly, Pearson recognized courts might be reluctant

to address the underlying merits in “cases in which the

No. 24-1100 7

constitutional question is so factbound that the decision pro-

vides little guidance for future cases.” Id. at 237.

The choice, in short, is left to the district courts and courts

of appeals as to whether to proceed in the first instance to the

qualified immunity claim. Here, for some of the same reasons

described in Pearson, we conclude that it would be preferable

to proceed directly to the qualified immunity analysis, and we

consider only whether it was clearly established law that the

officers could not conduct such a limited search to ensure

there were no injured persons in the apartment. We need not

consider the alternative claim that Powell had qualified im-

munity because it was not clearly established that a sweep

based on the safety concerns of the officers was unreasonable,

which in the circumstances presented in this case is a weaker

argument.

Qualified immunity is an affirmative defense, but once as-

serted as it was here, the burden shifts to the plaintiff to defeat

it. Leiser v. Kloth, 933 F.3d 696, 701 (7th Cir. 2019). In order to

meet that burden, the plaintiff must “show either a reasona-

bly analogous case that has both articulated the right at issue

and applied it to a factual circumstance similar to the one at

hand or that the violation was so obvious that a reasonable

person necessarily would have recognized it as a violation of

the law.” Id. (internal quotation marks omitted). Russell does

not identify any reasonably analogous caselaw that would

have alerted a reasonable officer in Powell’s position that a

sweep of the apartment in those circumstances would be un-

reasonable under the Fourth Amendment. At most, Russell

produces cases discussing the limits of a protective sweep, but

never addresses other relevant Fourth Amendment jurispru-

dence relevant to emergency aid situations. The question in

8 No. 24-1100

countering the defense of qualified immunity here is not only

whether one exception to the warrant requirement was appli-

cable, but whether caselaw established that the search in this

case was unreasonable under the Fourth Amendment under

any exceptions to the warrant requirement. Id. at 702. Russell

has not identified precedent—and we have found none—that

would have placed the constitutional issue beyond debate.

Stewardson v. Titus, 126 F.4th 1264, 1276 (7th Cir. 2025); Taylor

v. Schwarzhuber, 132 F.4th 480, 487 (7th Cir. 2025).

Existing precedent does not establish beyond debate that

the sweep of the residence in this case was unreasonable un-

der the Fourth Amendment because cases involving analo-

gous circumstances have repeatedly held that such a search

for injured persons can be constitutionally reasonable, and

Russell has identified no case to the contrary. As we dis-

cussed, the challenged search here involved a sweep of the

apartment, lasting approximately 37 seconds, to ensure that

no persons who were injured or who presented a danger were

in the apartment. The district court and the parties focus on

the law regarding protective sweeps in assessing Fourth

Amendment reasonableness, but we addressed a similar ar-

gument in United States v. Arch, 7 F.3d 1300 (7th Cir. 1993), and

held that the more relevant analysis for determining whether

the search was reasonable under the Fourth Amendment in

such circumstances was that of the exigent circumstances doc-

trine.

In Arch, after arresting Arch in the lobby of a motel, the

officers subsequently entered and conducted a sweep of his

motel room to ensure that no injured persons were in the

room. Id. at 1302. As in this case, the parties argued whether

the search was reasonable under the protective sweep

No. 24-1100 9

doctrine, which recognizes an exception to the warrant re-

quirement for a protective sweep accompanying an in-home

arrest. Under the protective sweep analysis, officers lawfully

present in the home may conduct a limited search of the

premises if there are “’articulable facts which, taken together

with the rational inferences from those facts, would warrant

a reasonably prudent officer in believing that the area to be

swept harbors an individual posing a danger to those on the

arrest scene.’” Arch, 7 F.3d at 1303, quoting Maryland v. Buie,

494 U.S. 325, 334 (1990). We held that whether that exception

extends to searches for potentially injured persons was a

question of first impression, but that we did not need to ad-

dress that issue because the propriety of a warrantless entry

in such circumstances was already recognized under the exi-

gent circumstances exception to the warrant requirement. Be-

cause the officers reasonably believed that an injured person

might be inside the motel room, we held that the search was

constitutional under that exception.

The Supreme Court in Brigham City v. Stuart, 547 U.S. 398

(2006), reinforced that the reasonableness of a warrantless

search for an injured person should be analyzed under the ex-

igent circumstances exception. The Court recognized that

searches inside a home are presumptively unreasonable un-

der the Fourth Amendment, but that the ultimate touchstone

is reasonableness, and the warrant requirement is subject to

exceptions where “the exigencies of the situation make the

needs of law enforcement so compelling that the warrantless

search is objectively reasonable under the Fourth Amend-

ment.” Id. at 403 (internal quotation marks omitted); Mincey

v. Arizona, 437 U.S. 385, 394 (1978). “One exigency obviating

the requirement of a warrant is the need to assist persons who

are seriously injured or threatened with such injury.” Brigham

10 No. 24-1100

City, 547 U.S. at 403. As the Court has repeatedly held, “police

may make warrantless entries onto premises if they reasona-

bly believe a person is in need of immediate aid and may

make prompt warrantless searches of a homicide scene for

possible other victims or a killer on the premises.” Flippo v. W.

Virginia, 528 U.S. 11, 14 (1999); Mincey, 437 U.S. at 392; Brigham

City, 547 U.S. at 403. 1 As we did in Arch, we therefore address

the challenge to the reasonableness under the Fourth Amend-

ment of the search for potentially injured persons under the

exigent circumstances exception.

The question, then, is whether a reasonable officer in Pow-

ell’s position would have understood that a warrantless

search of Russell’s apartment in these circumstances violated

the Fourth Amendment. That standard is not met, because

numerous cases have recognized that it is reasonable to search

for other potential victims when addressing a violent alterca-

tion of this kind. Powell would have no reason to know that

the facts in this case materially differed from that established

precedent such as to render the search unreasonable in light

of the exigent circumstances exception.

The only information as to the nature of the altercation in

this case was provided by the victim, Cannon. He was bleed-

ing from a wound to his chest, and after he was transported

to the hospital the officers were informed that he had suffered

a stab wound. The attack occurred in the apartment building

in which both Russell and Cannon had apartments, and

1 Although our qualified immunity analysis necessarily focuses solely

on the law at the time of the search, see Pearson, 555 U.S. at 244, we note

that the Supreme Court recently, in Case v. Montana, 146 S. Ct. 500, 508

(2026), reaffirmed the standard set forth in Brigham City, 547 U.S. at 400.

No. 24-1100 11

Cannon was outside the building when first encountered by

the officers. No other witnesses to the violent altercation were

identified or interviewed at the scene. Finally, the officers re-

ceived mixed messages as to Russell’s whereabouts. At one

time, they were told that he had departed, and they confirmed

that one of his two cars was missing from the spot in which

he parked. But according to the undisputed facts submitted

by the parties, they were also told that he could have gone

back to his apartment.

The officers were engaged in the investigative process,

and certainly were not required to believe without question

the version of events told to them by Cannon. Given Cannon’s

injury, it was clear to the officers that a violent conflict had

occurred, but they had only Cannon’s word that Russell was

the aggressor in that attack. Until that statement was corrob-

orated, it would be reasonable for officers to seek to ascertain

whether Russell was also injured in the violent incident.

As numerous cases have made clear, the officers do not

need certainty that an injured person is in the home in order

for the exigent circumstances exception to apply. For instance,

in Michigan v. Fisher, 558 U.S. 45, 45–46 (2009), the officers ob-

served, outside a residence, a pickup truck in the driveway

with its front smashed, damaged fence posts, three broken

house windows, and blood on the hood of the pickup, on

clothes inside it, and on one of the doors to the house. They

observed Jeremy Fisher inside the house, screaming and

throwing things. Id. at 46. He refused to answer their knock,

and they noticed a cut on his hand and asked if he needed

medical attention. Id. He responded with profanity and told

them to get a search warrant. Id. Although the trial and appel-

late courts had held that the entry into the house violated the

12 No. 24-1100

Fourth Amendment, the Supreme Court reversed, holding

that the officers’ entry was reasonable under a straightfor-

ward application of the emergency aid exception of the

Fourth Amendment. Id. at 48. The Court held that it would be

objectively reasonable to believe that his projectiles “might

have a human target (perhaps a spouse or a child), or that

Fisher would hurt himself in the course of his rage.” Id. at 48.

In so holding, the Court rejected the arguments that the blood

could be explained by the cut on his hand and that Fisher was

apparently able to meet his own needs. The Court held that

“[o]fficers do not need ironclad proof of ‘a likely serious life-

threatening’ injury to invoke the emergency aid exception.”

Id. at 49. The Court noted that it would not meet the needs of

law enforcement or the demands of public safety to require

officers to walk away in those circumstances. Id. And the pos-

sibility that no one in fact was in need of medical assistance

did not alter that analysis. As the Court held, “[o]nly when an

apparent threat has become an actual harm can officers rule

out innocuous explanations for ominous circumstances.” Id.

“It sufficed to invoke the emergency aid exception that Fisher

had hurt himself (albeit nonfatally) and needed treatment that

in his rage he was unable to provide, or that Fisher was about

to hurt, or had already hurt, someone else.” Id. As Fisher thus

makes clear, even where the officers could not identify with

precision the third person in danger of injury, or point to a

potentially fatal injury, the emergency aid exception to the

warrant requirement can be met.

Other cases have similarly recognized that an officer need

only have an objectively reasonable basis to believe that some-

one might be injured and in need of medical aid. For instance,

in United States v. Schmidt, 700 F.3d 934, 937–38 (7th Cir. 2012),

we upheld a search of a backyard under the emergency aid

No. 24-1100 13

exception to the warrant requirement where at the time of the

search gunshots had been heard in the neighborhood and bul-

let holes were in a car adjacent to the backyard and in the du-

plex itself, and bullet casings were found on the ground in the

area. We held that under those circumstances taken as a

whole, an officer could reasonably believe at the time of the

search that people in the backyard might have been shot and

in need of immediate aid. Id. at 938. As we will explore later,

the search was upheld on that basis even though approxi-

mately two hours had passed since the shots were fired, and

even though no specific potential victim was identified. Id.

We emphasized that the officer does not need knowledge that

someone has actually been shot in order to go into the yard.

Id. In so holding, we cited to the conclusion in United States v.

Brown, 64 F.3d 1083, 1086 (7th Cir. 1995) that “it is unreasona-

ble to think ‘that the police must stand outside [the] apart-

ment, despite legitimate concerns about the welfare of the oc-

cupant, unless they can hear screams.’” Id.; see also United

States v. Maxwell, 85 F.4th 1243, 1247–48 (7th Cir. 2023) (up-

holding search where a neighbor called 911, there was no

sound from within the apartment, and the officers saw two

bullet holes in the door near the deadbolt and shell casings

outside the door, because an officer could reasonably believe

that someone inside the apartment could be injured by the

bullets that went through the door). As those cases recognize,

officers can only act on the information before them, and the

evidence that a person may be in need of immediate assis-

tance need only be reasonable, not definitive.

Russell counters that the other information known to the

officers rendered unreasonable any conclusion that Russell

was in the apartment and was injured. First, Russell argues

that the officers had been informed that Russell left the

14 No. 24-1100

building, and therefore could not possibly have reason to be-

lieve that he, or anyone else, was in his apartment and injured.

That argument, however, is problematic both factually and le-

gally. As a factual matter, the parties’ Joint Statement of Ma-

terial Facts for Summary Judgment (“Undisputed Facts”) re-

veals that the officers were given conflicting information as to

Russell’s whereabouts. It includes the statement that dispatch

had informed the officers that an assault was in progress on

the scene at 1915 Washington Avenue, and that the potential

suspect had a knife and may have gone back upstairs to his

apartment. It further states that the building manager, Johnny

Marvitz, stated that Russell lives in Apartment 202 and he

was uncertain if Russell had gone back to his apartment.

Therefore, the officers had reason to believe that Russell

might be in his apartment.

And as a legal matter, we have held in other cases that the

possibility of another alternative does not render unreasona-

ble the belief that he was in need of medical assistance in his

apartment. We addressed such a circumstance in Gaetjens v.

City of Love Park, 4 F.4th 487 (7th Cir. 2021). In that case, a doc-

tor contacted Sally Gaetjens’s emergency contact, Rosalie

Eads, when unable to locate Gaetjens after instructing her to

go to the hospital based upon her high blood pressure. Id. at

490. Eads got no response when knocking on Gaetjens door,

and the next day called the Loves Park police and told them

that Gaetjens might be experiencing a medical emergency.

The officers could not see anyone inside Gaetjens’s Loves

Park home, but noticed a full mailbox and packages on the

porch. Id. Eads informed the officers that she thought perhaps

Gaetjens was at Gaetjens’s other home in Rockford. Id. The

officers nevertheless entered the Loves Park home without a

warrant, and we upheld the search under the emergency aid

No. 24-1100 15

exception. Gaetjens argued that Eads had told the officers that

she believed Gaetjens was at the Rockford home, but we held

that the statement “just gave [Sergeant] Allton a reason to also

look for Eads in her Rockford house; it in no way contradicted

the above facts that gave Allton an objectively reasonable ba-

sis to enter the Loves Park home.” Id. at 493.

In Gaetjens, then, we recognized that if officers have a rea-

sonable basis to believe that the person in need of emergency

aid is at that location, they can enter to search for that person

even if they have conflicting information that the person may

be at a different location. The potential for an alternative sce-

nario does not itself render the search unreasonable. Officers

in a fluid situation such as the ones presented in these cases

must be able to simultaneously explore conflicting theories,

and their actions can be reasonable even if the other scenario

is ultimately determined to be the correct one. Given that

precedent upholding searches in such circumstances, we can-

not hold that the possibility that Russell was in his car instead

of his apartment would alert a reasonable officer in Powell’s

position that an emergency aid sweep of the apartment was

unreasonable under the Fourth Amendment.

Russell next asserts that the officers lacked any nexus be-

tween his apartment and the reasons that they went in. That

argument fails for the same reasons stated above. The officers

had received information that Russell might have returned to

his apartment, and the injury to Cannon indicated a violent

altercation and the extent and nature of that violence was not

clear. Given the evidence that there had been a stabbing and

that one person involved in that violence was absent and had

not been heard from, Powell had reason in light of our

16 No. 24-1100

caselaw to believe that it was objectively reasonable to fear

that Russell might be injured.

Finally, Russell contends that the emergency aid exception

does not apply here, because the delay between the officers’

arrival at the scene and their search of the apartment belied

any claim of exigency. They argue that the first officer arrived

on the scene at 1:15pm, and that the search was not conducted

until over an hour later, at around 2:43 pm. Officer Powell,

who conducted the search of Russell’s apartment, arrived on

the scene at around 2:31 pm, and Officer Spiegelhoff, who

conducted the search of Cannon’s apartment, arrived at about

2:40 pm. Russell contends that the delay of an hour and a half

between the first arrival and the warrantless search renders

the search unreasonable because it makes clear that the offic-

ers could have obtained a warrant prior to the search.

In order for Russell to succeed on this basis and defeat the

claim of qualified immunity, any reasonable officer would

have known that the passage of time itself defeats the exi-

gency and renders the emergency aid exception inapplicable

and the search, accordingly, unreasonable. But we have re-

peatedly upheld searches under the emergency aid exception

involving significant time delays, including, for instance, de-

lays of nine hours, Sutterfield v. City of Milwaukee, 751 F.3d 542,

562 (7th Cir. 2014), two hours, Schmidt, 700 F.3d at 938, and

one hour and fifteen minutes, United States v. Salava, 978 F.2d

320, 325 (7th Cir. 1992). In those cases, we held that the urgent

need to provided medical aid as quickly as possible did not

dissipate with the passage of time, rendering warrantless en-

try reasonable.

For instance, in Schmidt, we noted that the exigency in

emergency aid situations was the potential for a wounded

No. 24-1100 17

victim, not the threat of further shooting, and that “the victim

would not have become any less wounded after two hours

had passed; to the contrary, he would need immediate aid.”

Schmidt, 700 F.3d at 938. We held that even though two hours

had passed during which a warrant presumably could have

been obtained, at the point of the search “[i]t would not have

made sense for an officer to wait for a warrant when a shoot-

ing victim could have been dying in the yard, and the officer

also did not need to know that someone had actually been

shot in order to go into the yard.” Id. Similarly, in Sutterfield,

we held that “although we agree … that emergencies do not

last forever, it would be folly for us to try to declare ex ante

some arbitrary cut-off that would apply to all emergency aid

cases.” Sutterfield, 751 F.3d at 562. Given our cases recognizing

that the passage of time does not necessarily render a war-

rantless search unreasonable where officers reasonably could

believe that a person in the area to be searched was in need of

immediate medical aid, it would not have been clear to Powell

that the passage of time would render the search unreasona-

ble here.

Finally, in assessing the reasonableness of a warrantless

search under the emergency aid exception, we consider also

whether the scope of the search was reasonable in light of the

exigency. Here, the parties do not contest the reasonableness

of the scope of the search. The search of Powell’s apartment

lasted for only 37 seconds, a time consistent with a search lim-

ited to the identification of injured persons in need of medical

aid. Accordingly, nothing in the nature of the sweep of the

apartment would alert a reasonable officer that the search

would violate the Fourth Amendment.

18 No. 24-1100

Given the undisputed facts in this case, therefore, Powell

is entitled to qualified immunity as to the search of Russell’s

apartment in this case, and is entitled to summary judgment

on that ground. On that basis, the grant of summary judgment

in favor of defendant Colin Powell is AFFIRMED.

No. 24-1100 19

HAMILTON, Circuit Judge, concurring in the judgment. I am

troubled by the defense theory that supposedly exigent

circumstances justified a warrantless entry well over an hour

after the first officer arrived on the scene, especially in the

absence of any more specific information about an immediate

and ongoing threat to anyone’s safety. See United States v.

Delgado, 701 F.3d 1161, 1164–65 (7th Cir. 2012) (suppressing

evidence found in warrantless search: “The mere fact that the

shooter was generally at large is not enough for a reasonable

officer to specifically believe that he was in the apartment.”).

Nevertheless, Judge Rovner’s careful opinion for the court

explains persuasively why plaintiff Russell has failed to

defeat Officer Powell’s defense of qualified immunity. Powell

and the other officers had to make decisions in the face of

conflicting and unreliable information about a violent crime

with the chief suspect on the loose. Moreover, the 37-second

intrusion into Russell’s apartment caused him no discernible

harm. I agree we should affirm the judgment of the district

court.