Petition for Writ of Certiorari — Brigham City v. Stuart
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Supreme Court, U.S.
FILED .
No. 05- , 05-502 OCT 17 2005
a \
In The
Supreme Court of the Gnited States
+
‘ BRIGHAM CITY,
Petitioner,
VS.
CHARLES W. STUART, SHAYNE R. TAYLOR,
AND SANDRA TAYLOR,
Respondents.
¢
On Petition For Writ Of Certiorari
To The Utah Supreme Court
S
PETITION FOR WRIT OF CERTIORARI
S
MARK L. SHURTLEFF
Utah Attorney General
KIRK M. TORGENSEN
Chief Deputy Attorney General
J. FREDERIC VOROS, JR.
Chief, Criminal Appeals Division
JEFFREY S. GRAY*
Assistant Attorney General
Counsel for Petitioner
160 East 300 South, 6th Floor
Post Office Box 140854
Salt Lake City, UT 84114-0854
(801) 366-0180
*Counsel of Record
COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
From outside a home at 3:00 a.m., officers witnessed a
tumultuous struggle between four adults and a juvenile.
Upon seeing the juvenile punch one of the adults in the
face, the officers entered the home to quell the violence.
The questions presented are:
1. Does the “emergency aid exception” to the warrant
requirement recognized in Mincey v. Arizona, 437 U.S. 385
(1978), turn on an officer’s subjective motivation for
entering the home?
2. Was the gravity of the “emergency” or “exigency”
sufficient to justify, under the Fourth Amendment, the
officers’ entry into the home to stop the fight?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .....................:csssscsecssesesseees i
_ _ ¢ Er renner iv
ee PND CIID ccc cosi:snesssccesescessccevenessosccccs 1
TIT hii sishiniiiechiiipeeicioieciialaieapidiinndliotale 1
CONSTITUTIONAL PROVISIONS INVOLVED ......... 1
STATEMENT OF THE CASE................:::scsesccseeeeeeeseees 2
REASONS FOR GRANTING THE PETITION. ............ 6
A. Courts Are Deeply Divided Over Whether the
Subjective Motivations of Police Officers Are
Relevant In Judging “Emergency Aid” Intru-
B. Courts Are Divided As to the Gravity of the
“Emergency” or “Exigency” That Is Neces-
sary to Justify a Warrantless Search.............. 11
C. The Officers’ Entry Into the Home to Stop
the Fight Was Reasonable Under the Fourth
siciineviiiisdinianyicneiicinpaiiituabinpepiiiiiats 15
D. The Questions Presented Are Important and
II vcsctipciniiipiriciapnaniaininiéncieiveabbiemneesitinibiabiaies 18
TN acinsiiccisisieniabucicehieessiageiiiinitadaubiiaieoaioiieigtachiesslin 19
APPENDIX
Opinion of the Utah Supreme Court (Brigham City
v. Stuart, 2005 UT 13, 519 Utah Adv. Rep. 17).....App. 1
Opinion of the Utah Court of Appeals (Brigham
City v. Stuart, 2002 UT App 317, 57 P.3d 1111)....App. 34
ill
TABLE OF CONTENTS - Continued
Page
Trial Court’s “Order on Motion to Suppress Evi-
lv
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Fletcher v. Town of Clinton, 196 F.3d 41 (1st Cir.
UD vsccvsiovsstctuinitcsiesnvsebadiedsginaleipgiidanddasadbasieddaeabiiailataas 17, 18
Graham v. Connor, 490 U.S. 386 (1989) ................:000 15, 17
Greiner v. City of Champlin, 27 F.3d 1346 (8th Cir.
” FI ccceusanistesachenmtiannsiiinnsiniisssesadinitnisiiniabaeaiameniael 13
Howard v. Dickerson, 34 F.3d 978 (10th Cir. 1994).......... 13
Illinois v. McArthur, 531 U.S. 326 (2001) .......... eee 6
Illinois v. Rodriguez, 497 U.S. 177 (1990) .............eeee 15
In re Sealed Case 96-3167, 153 F.3d 759 (D.C. Cir.
DEIIED vccinisnanctvdotunintietiontinianinnsemeiaiiadianmaidsaiaaiaiianimaaaieias 11
Joyce v. Town of Tewksbury, 112 F.3d 19 (1st Cir.
SEP U D ncechecéserasnsinmienenpsentniitesiatatanniatdepiaiieaninasmaibeanasaaas 13
Michigan v. Tyler, 436 U.S. 499 (1978) ..... eee ceceeeeeeeees 18
Mincey v. Arizona, 437 U.S. 385 (1978) ........ cee passim
Minnesota v. Olson, 495 U.S. 91 (1990) ............ 0.0. 11
Reardon v. Wroan, 811 F.2d 1025 (7th Cir. 1987)............. 13
Richards v. Wisconsin, 520 U.S. 385 (1997).................. 6, 18
Scott v. United States, 436 U.S. 128 (1978) ............cccceeeee 10
Sheik-Abdi v. McClellan, 37 F.3d 1240 (7th Cir.
1994), cert. denied, 513 U.S. 1128 (1995)... 11
United States v. Borchardt, 809 F.2d 1115 (5th Cir.
DIT P ncvinintotovintatstssscinmeseniumiadaaaaanad 9, 11
United States v. Cervantes, 219 F.3d 882 (9th Cir.
2000), cert. denied, 532 U.S. 912 (2001).................... 9,12
TABLE OF AUTHORITIES -— Continued
Page
United States v. Chipps, 410 F.3d 438 (8th Cir.
I intl tte iachtn ital nmiadnlibaiebensidiammennianeiii 9,12
United States v. Holloway, 290 F.3d 1331 (11th Cir.
2002), cert. denied, 537 U.S. 1161 (20093)...............0..... 12
United States v. Martins, 413 F.3d 139 (lst Cir.
Sicilia hia hacepesiaindaieitnietinciontegtnatiadientessvennets 11
United States v. Moss, 963 F.2d 673 (4th Cir. 1992)......... 11
United States v. Thomas, 372 F.3d 1173 (10th Cir.
REESE TEES ERT OTE anne Cote EO OTTO 9, 11
Wayne v. United States, 318 U.S. 205 (D.C. Cir.
I a a chat cal ana etnt te denmintataninabennmnendets 6
Welsh v. Wisconsin, 466 U.S. 740 (1984)......... 12, 13, 14, 17
Whren v. United States, 517 U.S. 806 (1996)........ 10, 15, 16
STATE CASES
Brigham City v. Stuart, 2002 UT App 317, 57 P.3d
EEE eRe ae a ee 1
Brigham City v. Stuart, 2005 UT 13, 519 Utah Adv.
SIL, TT nibs tenasicitteinsinactieaniddaciaiebieninensinennianbundunneenenennenieecennmecnenen 1
Lubenow v. North Dakota State Hwy Comm’r, 438
SEPEEUIPUIEIED Witt Pccnsiictisccnscdcnscessenescseonsessscsates 10, 12
People v. Davis, 497 N.W.2d 910 (Mich.), cert.
denied, 508 U.S. 947 (19938)............ccccsecsccccsesssersreees 10, 12
People v. Hebert, 46 P.3d 473 (Colo. 2002) ............0..... 9, 11
People v. Mitchell, 347 N.E.2d 607 (N.Y. 1976) ...9, 10, 11, 12
People v. Ray, 981 P.2d 928 (Cal. 1999), cert. denied,
a 10, 12
vi
TABLE OF AUTHORITIES -— Continued
Page
State v. Applegate, 626 N.E.2d 942 (Ohio 1994)............... 12
State v. Blades, 626 A.2d 273 (Conn. 1993).................. 9,12
State v. Boggess, 340 N.W.2d 516 (Wis. 1983)............. 10, 11
State v. Carlson, 548 N.W.2d 138 (Iowa 1996).............. 9, 11
State v. Drennan, 101 P.3d 1218 (Kan. 2004)............. 10, 12
State v. Fisher, 686 P.2d 750 (Ariz.), cert. denied,
gE ee ee 10, 12
State v. Frankel, 847 A.2d 561 (N.J.), cert. denied,
EE CENT ceniciictnisessditteniddnatsigipeateasenemiieineenananact 10, 12
State v. Heumiller, 317 N.W.2d 126 (S.D. 1982) ............... 10
State v. Jones, 667 A.2d 1043 (N.J. 1995) 0... ccecceeeees 14
State v. Kinzy, 5 P.3d 668 (Wash. 2000), cert. denied,
ee eS I incpnciinnsinieiionsintinasitedinmtiendasminines 10, 11
State v. Lovig, 675 N.W.2d 557 (Iowa 2004) ................000. 14
State v. Mountford, 769 A.2d 639 (Ver. 2000) ............. 10, 12
State v. Othoudt, 482 N.W.2d 218 (Minn. 1992)........... 9, 13
State v. Paul, 548 N.W.2d 260 (Minn. 1996).................00. 14
State v. Plant, 461 N.W.2d 253 (Neb. 1990)................ 10, 12
State v. Ryon, 108 P.3d 1032 (N.M. 2005)................... 10, 12
State v. Scott, 471 S.E.2d 605 (N.C. 1996) ..0.......ccccecceeeeees 9
Wofford v. State, 952 S.W.2d 646 (Ark. 1997)............... 9,12
CONSTITUTIONAL PROVISIONS
Sy GI, IEE, Ti cisccnsausspenieinencaphamiuiiiumiaiene 1, 4, 7, 17
Vii
TABLE OF AUTHORITIES -— Continued
Page
FEDERAL STATUTES
SP TTA Tn TIT sninicinientbabndndenicininimeadianebpineptiiniiiiiinnieaninaiediaiy 1
STATE STATUTES
Utah Code Ann. § 76-5-102 (1999) ............ccccccccceeeeeeereeceees 13
Utah Code Ann. § 76-5-103 (1999) ..0.........cccccccceeeceeereeenees 13
SECONDARY AUTHORITY
3 Wayne R. LaFave, Search and Seizure § 6.6 (4th
1
PETITION FOR WRIT OF CERTIORARI
The State of Utah respectfully petitions for a writ of
certiorari to review the judgment of the Utah Supreme
Court in this case.
¢
OPINIONS AND ORDERS
The opinion of the Utah Supreme Court is reported at
2005 UT 13, 519 Utah Adv. Rep. 17 (App. 1-33). The
opinion of the Utah Court of Appeals is reported at 2002
UT App 317, 57 P.3d 1111 (App. 34-45). The order of the
First Judicial District Court of Utah, Box Elder County,
granting respondents’ motion to suppress is unreported
(App. 46-48).
e
JURISDICTION
The decision of the Utah Supreme Court was entered
on February 18, 2005. The State’s petition for rehearing
was denied on July 18, 2005 (App. 49). This Court has
jurisdiction pursuant to 28 U.S.C. § 1257(a).
S
CONSTITUTIONAL PROVISIONS INVOLVED
U.S. Const., amend. IV
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
2
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
¢
STATEMENT OF THE CASE
1. Summary of Facts. At 3:00 am. on July 23,
2000, Brigham City police officers were dispatched to a
local residence in response to a complaint about a loud
party. App. 2-3. Four officers responded, converging at the
street curb in front of the residence. R. 99: 7-11. The
officers concluded that the commotion from the home
“sounded like there was an altercation occurring, some
kind of fight.” R. 99: 11, 29. They heard “thumping,” people
yelling “stop, stop,” and someone saying, “get off me.” R.
99: 10.
The officers walked up to the house and looked
through the front window to “ascertain what was going
on.” R. 99: 13. They observed a beer bottle on the ledge of
the front window, but could see nothing inside. R. 99: 13-
14. Leaving one officer to guard the front door, the other
three walked to the corner of the house and down the
driveway to the backyard fence “to investigate where [the
fight) was coming from.” R. 99: 15-16. Peering into the
backyard through the fence, the officers saw two teenage
males drinking alcoholic beverages, but no fight. App. 2-3.
They concluded that the fight was in the back of the home —
it “was just as severe as when [they had) arrived.” R. 99: 18.
“[Cloncerned about the fight,” the officers entered the
backyard and Officer Jeff Johnson and a second officer
walked to the back of the house to investigate. App. 2-3; R.
99: 19-21. Through a window, the officers saw four adults
trying to restrain a juvenile against a refrigerator. App. 3;
3
R. 99: 22. The juvenile’s hands were doubled into fists and
he was “twisting and turning and writhing” in an effort to
break free from the grasp of the adults. R. 99: 22, 40-41.
All the while, the combatants were threatening each other
and exchanging obscenities. R. 99: 21-22, 54-55. The
officers walked past a second window to an open back door.
R. 99: 22. The screen door was shut. R. 99: 21.
After reaching the screen door, Officer Johnson saw
the juvenile wrest a hand free and “land a punch squarely
on the face” of one of the adults, drawing blood. App. 2-3;
R. 99: 22, 41, 55. Upon seeing the punch, and in the midst
of a flurry of activity that ensued to control the juvenile,
Officer Johnson opened the screen door and yelled “police,”
but it “was so loud [and] tumultuous, that nobody heard a
word.” App. 2, 18; R. 99: 23, 42. The officers then entered
the kitchen and Officer Johnson again yelled as loudly as
he could. App. 2; R. 99: 23. The occupants gradually
became aware of the officers’ presence and the altercation
abated. App. 2; R. 99: 23, 45. To prevent anyone else from
getting hurt, the officers stepped between the combatants
and handcuffed the juvenile. R. 99: 23-24.
When Officer Johnson asked the adult assault victim
if he needed assistance, the occupants “turned‘and became
verbally hostile,” demanding that the officers leave. App.
2; R. 99: 24. The situation deteriorated from there and the
adult occupants were subsequently arrested for disorderly
conduct, intoxication, and contributing to the delinquency
of a minor. App. 3; R. 99: 62-63.
2. Motion to Suppress. Respondents moved to
suppress the evidence of alcohol consumption found inside
the home, arguing that the officers’ entry violated their
Fourth Amendment rights. The trial court granted the
4
motion, ruling that there were “no exigent circumstances
to justify the officers’ entry into the residence.” App. 47.
The court ruled that what the officers “should have done,
as required under the 4th Amendment, was knock on the
door,” even though “the evidence [was] that the occupants
probably would not have heard [it].” App. 47.
3. Utah Court of Appeals Decision. The City ap-
pealed and in a 2-1 decision, the Utah Court of Appeals
affirmed. App. 34-45. The majority concluded that nothing
in the findings indicated that “the altercation posed an
immediate serious threat or created a threat of escalating
violence.” App. 40. In dissent, Judge Bench observed that
“fi]t is nonsensical to require officers, charged with keep-
ing the peace, to witness this degree of violence and take
no action until they see it escalate further.” App. 44.
4. Utah Supreme Court Decision. On certiorari, the
Utah Supreme Court affirmed, holding that the officers’
entry was not justified under either the “emergency aid”
exception recognized in Mincey v. Arizona, 437 U.S. 385,
392 (1978), or the “exigent circumstances” exception. App.
11-25. The court distinguished the two exceptions, reason-
ing that the emergency aid exception applies when officers
serve-a caretaking function and that the exigent circum-
stances exception applies when officers “pursu[e] a law
enforcement mission.” App. 16. The court admitted that
“this classification scheme is artificial and simplistic,” but
deemed it useful in evaluating such entries. App. 16.
Emergency Aid Exception. The court applied a three-
part test in determining whether an emergency justified the
warrantless entry. The City was required to show that: (1)
there was “‘an objectively reasonable basis to believe’” that
there was an emergency requiring immediate assistance
5
“‘for the protection of life,’” ie., that “‘an unconscious,
semi-conscious, or missing person feared injured or dead
[was] in the home’”; (2) “‘[t]he search [was] not primarily
motivated by intent to arrest and seize evidence’”; and (3)
“‘ft]here [was] some reasonable basis to associate the
emergency with the area or place to be searched.’” App.
12-13 (citation omitted). The court held that the emer-
gency aid exception did not apply because: (1) having
“provid[ed] no medical assistance whatsoever,” the officers
failed the motivation test, and (2) the gravity of harm fell
short of “serious bodily injury.” App. 14.
Exigent Circumstances Exception. A 3-2 majority held
that the warrantless entry was not justified under the
exigent circumstances exception. App. 15-25. The majority
held that the harm being inflicted during the fight was
insufficient to justify an “exigent circumstances” entry.
App. 18-19. It concluded that occupants of a home may
“engage in acts that meet the legal definition of assault”
without risking a warrantless intrusion by police. App. 18.
The majority held that the quantum of harm needed to
justify an “exigent circumstances” entry into the home is
greater when the safety risk is to its inhabitants rather
than to officers. App. 16-18.
The majority also held that the officers violated the
Fourth Amendment because they did not first knock to try
to gain the occupants’ attention from outside the resi-
dence. App. 19-20. The majority did so even while ac-
knowledging the trial court’s finding that “a knock
probably would not have been heard.” App. 19-20. The
majority held that the officers should have given “thought
to the constitutional implications associated with where
they announced their presence,” and it “speculate[d]” that
if the officers had knocked, they might have “achieved the
6
two-fold objective of quelling the disturbance by making
their presence known and honoring the constitutional
integrity of the dwelling.” App. 20.
Dissent. Joined by Justice Wilkins, Justice Durrant
dissented from the majoritys exigent circumstances
opinion, concluding that the majority's standard of risk
“consigns law enforcement to the porch steps until it is too
late to prevent the very injury the majority concedes
officers are entitled to prevent.” App. 31. Citing the trial
court’s finding that a knock probably would not have been
heard and this Court’s decision in Richards v. Wisconsin,
520 U.S. 385, 394 (1997), the dissent concluded that “it is
not unreasonable for officers to bypass knocking or an-
nouncing their presence if such an action would be futile,
dangerous, or inhibit an effective investigation of the
suspected crime.” App. 32 (Durrant, J., concurring and
dissenting).
+
REASONS FOR GRANTING THE PETITION
In Mincey v. Arizona, this Court recognized “the right
of the police to respond to emergency situations,” such as
when there is an immediate “‘need to protect or preserve
life or avoid serious injury.’” 437 U.S. 385, 392-93 (1978)
(quoting Wayne v. United States, 318 U.S. 205, 212 (D.C.
Cir. 1963). More generally, this Court has long recognized
that an officer may enter a home without a search warrant
when there is “a plausible claim of specially pressing or
urgent law enforcement need, ie., ‘exigent circum-
stances.’” Illinois v. McArthur, 531 U.S. 326, 331 (2001)
(citations omitted). The Utah Supreme Court misapplied
both exceptions, and in so doing exacerbated lower court
confusion about their application.
The federal courts of appeal and state supreme courts
are divided over whether subjective motivation plays a
role in determining whether an emergency aid entry is
justified under Mincey. Two federal courts of appeal and
six state supreme courts have held that subjective motiva-
tion is irrelevant; the only issue is whether a reasonable
officer would have believed that a person inside the home
was in need of immediate aid. By contrast, three federal
courts of appeal and thirteen state supreme courts (includ-
ing Utah) have held that the exception applies only if an
officer’s subjective motivation for the intrusion was to
provide aid (as opposed to enforcing the law). This Court
should resolve the conflict.
_The lower courts are also in disarray over how grave
the danger or wrongdoing must be to justify warrantless
entries under either the “emergency aid exception” or the
“exigent circumstances exception.” In this case, as the
dissent observed, the Utah court imposed a standard that
“consigns law enforcement to the porch steps until it is too
late to prevent the very injury the majority concedes
officers are entitled to prevent.” App. 31 (Durrant, J.,
concurring and dissenting). A principled, uniform national
standard is needed on this issue as well.
This Court should grant certiorari to ensure consis-
tent application of Fourth Amendment principles on these
important and recurring questions and to reverse the
Utah Supreme Court’s manifestly erroneous holding.
8
A. Courts Are Deeply Divided Over Whether the
Subjective Motivations of Police Officers Are
Relevant In Judging “Emergency Aid” Intrusions.
In Mincey, this Court observed that “[n]umerous state
and federal cases have recognized that the Fourth
Amendment does not bar police officers from making
warrantless entries and searches when they reasonably
believe that a person within is in need of immediate aid.”
437 U.S. at 392. The Court did not approve or otherwise
address the specific holdings of those cases because the
Arizona officers’ initial entry to search for shooting victims
and provide aid was not at issue on certiorari. See Id. at
392-93 & nn. 6 & 7.’ But in dictum, the Court agreed that
“‘it]he need to protect or preserve life or avoid serious
injury is justification for what would be otherwise illegal
absent an exigency or emergency.’” 437 U.S. at 392-93
(citation omitted).
State and federal courts have since cited Mincey as
recognizing an “emergency aid exception” to the warrant
requirement. But because Mincey did not articulate a
standard by which “emergency aid” entries should be
>judged, the cases have been anything but consistent. And
' Immediately following the fatal shooting of an undercover officer
_in the home of a suspected drug dealer, officers entered the home in
search of other victims and requested medical aid. Mincey, 437 U.S. at
387-88. After the scene was secured, homicide detectives conducted a
warrantless search for evidence. Jd. at 388-89. This Court held that the
warrantless search for evidence violated the Fourth Amendment's
warrant requirement. Jd. at 390-95. The Court refused to adopt
Arizona’s “murder scene” exception and concluded that the search for
evidence was not justified under the exigent circumstances exception.
Id. The validity of the initial entry was unchallenged. See id. at 392.
9
many, including the decision below, have departed from
well-settled precedent set by this Court.
Two federal courts of appeal examine emergency
entries under the exigent circumstances exception and
apply the objective standard traditionally used in Fourth
Amendment cases. Under this standard, a warrantless
entry into a home is permissible if a reasonable officer
would believe that a person is in need of immediate aid.
See In re United States v. Chipps, 410 F.3d 438, 442 (8th
Cir. 2005); Sealed Case 96-3167, 153 F.3d 759, 766 (D.C.
Cir. 1998). Six state supreme courts have likewise applied
an objective standard to emergency entries. See Wofford v.
State, 952 S.W.2d 646, 651 (Ark. 1997); People v. Hebert,
46 P.3d 473, 478-80 (Colo. 2002) (en banc); State v. Blades,
626 A.2d 273, 278 (Conn. 1993); State v. Carlson, 548
N.W.2d 138, 141-42 (Iowa 1996); State v. Othoudt, 482
N.W.2d 218, 223 (Minn. 1992); State v. Scott, 471 S.E.2d
605, 613-15 (N.C. 1996).
In contrast, three federal courts of appeal have ap-
plied a test that scrutinizes an officer’s subjective motiva-
tion for making an entry. They hold that even if an
intrusion is objectively reasonable, the emergency aid
exception does not apply if the officer was not subjectively
motivated by the need to render aid. See United States v.
Thomas, 372 F.3d 1173, 1177 (10th Cir. 2004); United
States v. Cervantes, 219 F.3d 882, 890 (9th Cir. 2000), cert.
denied, 532 U.S. 912 (2001); United States v. Borchardt,
809 F.2d 1115, 1117 (5th Cir. 1987). These cases follow the
lead of People v. Mitchell, 347 N.E.2d 607 (N.Y. 1976) —a
case cited but not approved or otherwise examined by this
Court in Mincey. See 437 U.S at 392-93 & n.6.
10
Twelve state supreme courts apply some form of the
“Mitchell” test. See State v. Fisher, 686 P.2d 750, 759-61
(Ariz.), cert. denied, 469 U.S. 1066 (1984); People v. Ray,
981 P2d 928, 932-39 (Cal. 1999), cert. denied, 528 US.
1187 (2000); State v. Drennan, 101 P.3d 1218, 1231-32
(Kan. 2004); State v. Plant, 461 N.W.2d 253, 262-63 (Neb.
1990); State v. Frankel, 847 A.2d 561, 567-10 (N.J.), cert.
denied, 125 S.Ct. 108 (2004); State v. Ryon, 108 P.3d 1032,
1039, 1042-43 (N.M. 2005); Mitchell, 347 N.E. at 609-10;
Lubenow v. North Dakota State Hwy Comm’r, 438 N.W.2d
528, 531-33 (N.D. 1989); State v. Heumiller, 317 N.W.2d
126, 129 (S.D. 1982); State v. Mountford, 769 A.2d 639,
643-47 (Ver. 2000); State v. Kinzy, 5 P.3d 668, 675-78
(Wash. 2000) (en banc), cert. denied, 531 U.S. 1104 (2001);
State v. Boggess, 340 N.W.2d 516, 521-22 (Wis. 1983). Utah
joined them in this case. App. 12-13.’
The conflict among the courts is deep, intractable, and
ripe for resolution. Resolving this conflict is important
because this Court has “never held, outside the context of
inventory search or administrative inspection ..., that an
officer’s motive invalidates objectively justifiable behavior
under the Fourth Amendment.” Whren v. United States,
517 U.S. 806, 812 (1996). The vitality of the inquiry into
an officer’s subjective motivations is thus questionable, at
best. See 3 Wayne R. LaFave, Search and Seizure § 6.6(a)
n.17, p. 454 (4th ed. 2004) (citing Scott v. United States,
436 U.S. 128, 137-39 (1978)) (questioning whether
* In People v. Davis, the Michigan Supreme Court specifically
declined to determine “whether [it would] adopt the subjective element”
of the Mitchell test. 497 N.W.2d 910, 921 & n.12 (1993), cert. denied,
508 U.S. 947 (1993).
11
Mitchell’s subjective inquiry continues to have vitality as a
Fourth Amendment matter).
This Court should resolve the question left unan-
swered in Mincey.
B. Courts Are Divided As to the Gravity of the
“Emergency” or “Exigency” That Is Necessary
to Justify a Warrantless Search.
Courts have also failed to agree on a consistent
standard in judging the gravity of the harm or wrongdoing
necessary to justify a warrantless entry, under either the
emergency aid exception or the exigent circumstances
exception.
Some cases have suggested that an emergency aid
entry is justified whenever a person’s safety or health is in
danger. See, e.g., Minnesota v. Olson, 495 U.S. 91, 100
(1990) (recognizing that warrantless intrusion “‘may be
justified by ... the risk of danger to ... persons inside or
outside the dwelling’”); Thomas, 372 F.3d at 1177 (safety);
Sheik-Abdi v. McClellan, 37 F.3d 1240, 1244 (7th Cir.
1994) (harm), cert. denied, 513 U.S. 1128 (1995); United
States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992) (harm);
Borchardt, 809 F.2d at 1117 (physical harm); Carlson, 548
N.W.2d at 141 (physical harm); Hebert, 46 P.3d at 479
(safety); Kinzy, 5 P.3d at 676 (health or safety); Boggess,
340 N.W.2d at 522 (physical injury).
Other cases suggest a more demanding standard,
permitting entry to prevent “serious” injury or harm. See
Mincey, 437 U.S. at 392 (“avoid serious injury”); Jn re
Sealed Case 96-3167, 153 F.3d at 766 (same); United
States v. Martins, 413 F.3d 139, 147 (1st Cir. 2005) (serious
12
harm); Chipps, 410 F.3d at 442 (serious injury); United
States v. Holloway, 290 F.3d 1331, 1336 (11th Cir. 2002)
(serious injury), cert. denied, 537 U.S. 1161 (2003);
Cervantes, 219 F.3d at 889 (serious bodily injury); Wofford,
952 S.W.2d at 651 (serious bodily harm); State v. Apple-
gate, 626 N.E.2d 942, 944 (Ohio 1994) (serious injury),
Davis, 497 N.W.2d at 915 (serious harm); Frankel, 847
A.2d at 568 (serious injury); Ryon, 108 P.3d at 1045 (life or
limb).”
The Utah Supreme Court has imposed the most
restrictive standard, permitting an emergency aid entry
only “for the protection of life.” App. 12. The court ex-
plained that under this standard, the officer must have
“‘an objectively reasonable belief that an unconscious,
semi-conscious, or missing person feared injured or dead’ is
in the home.” App. 13 (citation omitted) (first and last
emphases added). See also Blades, 626 A.2d at 277-80
(protect or preserve life).
This Court’s decision in Welsh v. Wisconsin, 466 U.S.
749 (1984), has spawned more confusion. After holding
that the gravity of the offense is relevant in determining
whether an exigency justifies a warrantless entry, Welsh
concluded that Wisconsin’s driving while intoxicated
(DWI) offense was not of sufficient gravity to justify a
warrantless entry because it was only a minor offense
under state law. Jd. at 753-54. Although Wisconsin’s DWI
offense was a noncriminal offense for which no imprison-
ment was possible, lower courts are divided over whether
* Some courts also permit emergency aid entries to protect
property. See Fisher, 686 P.2d at 760; Ray, 981 P.2d at 934; Drennan,
101 P.3d at 1231; Plant, 461 N.W.2d at 262; Mitchell, 347 N.E.2d at 609;
Lubenow, 438 N.W.2d at 533; Mountford, 769 A.2d at 644.
13
misdemeanor offenses should be treated as minor offenses
under Welsh.
Some courts have suggested that Welsh for» ioses
application of the exigent circumstances exception for
misdemeanor offenses. See, e.g., Greiner v. City of Cham-
plin, 27 F.3d 1346, 1353 (8th Cir. 1994) (concluding that
Welsh “casts serious doubt on the question of whether a
warrantless home arrest for a misdemeanor will ever be
deemed reasonable”); Reardon v. Wroan, 811 F.2d 1025,
1028 (7th Cir. 1987) (concluding, that Welsh holds “that, at
a minimum, exigent circumstances do not exist when the
underlying offense is minor, typically a misdemeanor”);
Othoudt, 482 N.W.2d at 223-24 (observing that no court
“has ever held that exigent circumstances would permit a
warrantless entry into a home to arrest for an offense of
lesser magnitude than a felony”); see also Howard v.
Dickerson, 34 F.3d 978, 982 (10th Cir. 1994) (holding that
misdemeanor offenses for careless driving and leaving the
scene of an accident that are punishable by up to 90 days
in jail “do not warrant the extraordinary resource of
warrantless home arrest”).
The majority in this case joined these courts. Although
the majority did not discuss Welsh, it distinguished emer-
gencies or exigencies that will justify a warrantless intru-
sion from those that will not in the same way Utah law
distinguishes felony assaults from misdemeanor assaults.
Compare Utah Code Ann. § 76-5-103 (1999) (making it a
felony for an assault that causes “serious bodily injury”)
with Utah Code Ann. § 76-5-102 (1999) (making it a
misdemeanor for an assault causing less severe injury).
The Utah court thus created a rule that effectively pre-
cludes entries based on a misdemeanor offense. The
majority reasoned that an assault must be more serious to
14
justify entry because occupants of a home “may well
choose to expose themselves to greater actual or potential
harm to preserve their right to be left alone in their
homes” and “may even engage in acts that meet the legal
definition of assault,” free from the risk of a warrantless
intrusion. App. 18.
By contrast, other courts have concluded that Welsh
does not foreclose entries based on misdemeanor offenses,
particularly where the offense involves violence or a risk of
harm to others. See, e.g., Joyce v. Town of Tewksbury, 112
F.3d 19, 22 (1st Cir. 1997) (holding that misdemeanor
classification of assault “does not reduce it to a ‘minor
offense’” under Welsh); State v. Lovig, 675 N.W.2d 557,
565-66 (Iowa 2004) (concluding that misdemeanor DWI of
sufficient gravity to justify warrantless intrusion, but
noting significant split of authority on issue); State v.
Paul, 548 N.W.2d 260, 267 (Minn. 1996) (concluding that
misdemeanor DWI of sufficient gravity to justify war-
rantless intrusion); State v. Jones, 667 A.2d 1043, 1049
(N.J. 1995) (recognizing that “the category of misdemean-
ors today includes enough serious offenses to call into
question the desirability” of making exigent circumstance
entries dependent on whether the offense is a misde-
meanor or felony).
In sum, there is at present no clear, uniform, and
principled standard to guide courts in their assessment of
the gravity of harm or wrongdoing necessary to justify a
warrantless entry. That void has bred confusion among the
courts, if not outright division. The time is ripe for this
Court to articulate an appropriate standard.
15
C. The Officers’ Entry Into the Home to Stop the
Fight Was Reasonable Under the Fourth Amend-
ment.
The Brigham City officers’ entry into the home was
not only reasonable, but compelled by the circumstances.
The officers would have been derelict in their duty had
they not acted.
“(O)utside the context of inventory search or adminis-
trative inspection,” this Court has consistently judged
warrantless intrusions against an objective standard,
without regard to an officer’s underlying intent or motiva-
tion. Whren, 517 U.S. at 811-13. The Utah court applied a
test that squarely conflicts with this objective test, con-
cluding that the officers’ entry was unreasonable in part
because the officers’ subjective motivation for entering was
to further a law enforcement purpose rather than to
render medical aid. App. 11-14. This was manifest error.
Under the objective test, a warrantless entry is
justified if “‘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.” Mincey, 437 U.S. at 393-94 (citation omitted).
“(T]he question is whether the officers’ actions are ‘objec-
tively reasonable’ in light of the facts and circumstances
confronting them” at the time of the intrusion. Graham v.
Connor, 490 U.S. 386, 397 (1989) (applying objective test
in use of force case). The “calculus of reasonableness must
embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving.” Jd. at 396-
97. Therefore, “room must be allowed for some [reason-
able] mistakes on their part.’” Illinois v. Rodriguez, 497
16
U.S. 177, 186 (1990) (quoting Brinegar v. United States,
338 U.S. 160, 176 (1949)).
The Brigham City officers’ entry in this case was
“objectively justifiable” under the Fourth Amendment. See
Whren, 517 U.S. at 812. Upon their arrival at the front
curb of the house, the officers heard a fight in progress.
The altercation continued with no drop in intensity as the
officers investigated first from the front window, then from
the driveway, and finally from the back door. Even as the
officers watched the four adults fight to restrain the
juvenile, they did not enter. But when the juvenile wrested
a hand free and punched one of the men in the face, the
officers acted. They opened the screen door and yelled.
When this failed to gain the combatants’ attention, they
entered the kitchen and again shouted. Only then did the
violence stop, albeit gradually.
The officers’ intervention was justified to quell the
ongoing violence and prevent further harm to those inside.
As observed by the dissent, the officers “were certain that
a fight was in progress, that the participants had likely
been consuming alcohol, and that at least one individual
had already sustained an injury.” App. 30 (Durrant, J.,
concurring and dissenting). And because the altercation
was in the kitchen, an officer could reasonably believe that
“a knife [could be] pulled from a nearby drawer, elevating
the potential severity of physical harm that a participant
in the fight—or an innocent bystander—could suffer.” See
App. 31 (Durrant, J., concurring and dissenting); R. 99: 45-
46.
The Utah Supreme Court held that the harm inflicted
and the gravity of the offense committed did not justify the
warrantless entry. App. 13-19. In so holding, the court
|)
disregarded this Court’s express recognition that war-
rantless intrusions are justified to quell ongoing violence,
see Welsh, 466 U.S at 751, and prevent serious harm to
others, Mincey, 437 U.S. at 392 (citation omitted). As
observed by the First Circuit Court of Appeals, “[e]vidence
of extreme danger in the form of shots fired, screaming, or
blood is not required for there to be some reason to believe
that a safety risk exists.” Fletcher v. Town of Clinton, 196
F.3d 41, 49 (1st Cir. 1999). The officers here were con-
fronted with all but the shots fired.
The Utah Supreme Court recognized that “[i]t was the
acknowledged presence of the authority of the police that
quenched the heat in the kitchen.” App. 18. Yet, it opined
that the only question facing the officers before entering
was whether the adults would successfully subdue the
juvenile. App. 19. The court assumed too much. Neither it,
nor the officers, possessed the clairvoyance to know how
the fight would play out. Neither the court, nor the offi-
cers, could know whether the violence would escalate. Nor
could they know “which of the parties to the melee were
victims and which were instigators.” App. 29 (Durrant, J.,
concurring and dissenting). In any event, such specula-
tion—judged from the cool of the courtroom rather than
the heat of the kitchen—squarely conflicts with this
Court’s mandate in Graham. Reasonableness “must be
judged from the perspective of a reasonable officer on the
scene, rather than the 20/20 vision of hindsight.” Graham,
490 U.S. at 396 (addressing reasonableness in use of force
case).
Finally, while acknowledging the trial court’s finding
that the altercation was so loud and tumultuous that “the
occupants probably would not have heard” a knock at the
door, the majority in this case held that the Fourth
18
Amendment required the officers to nevertheless try. App.
19-20, 47. Again, and as noted by the dissent, App. 31-32,
the majority’s holding squarely conflicts with well-settled
precedent from this Court. Officers may forego knocking if
they “have a reasonable suspicion that knocking and
announcing their presence, under the particular circum-
stances, would be dangerous or futile.... ” Richards v.
Wisconsin, 520 U.S. 385, 394 (1997) (explaining the cir-
cumstances that justify a no-knock entry when executing a
knock-and-announce warrant).
** *
In sum, the officers’ entry to quell the violence and
prevent further injury was reasonable. Just as “it would
defy reason to suppose that firemen must secure a war-
rant or consent before entering a burning structure to put
out the blaze,” Michigan v. Tyler, 436 U.S. 499, 509 (1978),
so too would it defy reason to suppose that police officers
must secure a warrant or consent before entering a home
to put down an ongoing fight.
D. The Questions Presented Are Important and
Recurring.
The importance of these questions is great, particu-
larly where the dangers are occasioned by violence in the
home. “In those disputes, violence may be lurking and
explode with little warning.” Fletcher, 196 F.3d at 50.
These situations “require police to make particularly
delicate and difficult judgments quickly.” Jd. Although
Fourth Amendment rights are not and should not be
suspended in furtherance of safety, neither should courts
“consign|) law enforcement to the porch steps until it is
19
too late” to prevent harm to those inside. App. 31 (Durant,
J., concurring and dissenting).
As evidenced by the numerous federal circuit court
and state supreme court cases cited, police are frequently
confronted with situations that require prompt action. And
often, these emergencies occur under circumstances that
suggest the possibility of domestic violence, an ever
growing problem confronting the justice system.
Given the importance and frequency of “emergency”
calls by law enforcement, there is a compelling need for
this Court’s intervention and guidance.
+
CONCLUSION
For the reasons stated above, the City’s petition for a
writ of certiorari should be granted.
Respectfully submitted,
MARK L. SHURTLEFF
Utah Attorney General
Kirk M. TORGENSEN
Chief Deputy Attorney General
J. FREDERIC VOROS, JR.
Chief, Criminai Appeals Division
JEFFREY S. GRay*
Assistant Attorney General
Counsel for Petitioner
Utah Attorney General’s Office
160 East 300 South, 6th Floor
P.O. Box 140854
Salt Lake City, UT 84114-0854
(801) 366-0180
*Counsel of Record
APPENDIX
App. 1
IN THE SUPREME COURT OF THE STATE OF UTAH
Brigham City,
Plaintiff and Petitioner,
Vv.
Charles W. Stuart, Shayne R.
Taylor and Sandra A. Taylor,
Defendants and Respondents.
No. 20021004
FILED February 18, 2005
2005 UT 13
First District, Brigham City
The Honorable Clint S. Judkins
Attorneys: Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray,
Asst. Att’y Gen., Salt Lake City, Leonard J.
Carson, Brigham City, for petitioner
Rod Gilmore, Layton, for respondent
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
41 We granted certiorari to review the court of
appeals’s affirmance of the trial court’s order granting
defendants Charles Stuart and Shayne and Sandra
App. 2
Taylor’s motion to suppress evidence obtained during a
warrantless entry into a home. The single issue we are
called upon to decide is whether the court of appeals
properly affirmed the trial court’s determination that the
warrantless entry was not supported by exigent circum-
stances and was, therefore, unlawful. We conclude that the
court of appeals was correct and affirm.
FACTUAL AND PROCEDURAL BACKGROUND’
{2 Four Brigham City police officers responded to a
complaint of a loud party. They arrived at the offending
residence at about three o'clock in the morning. They
traveled to the back of the house to investigate the noise.
From a location in the driveway, the officers peered
through a slat fence and observed two apparently under-
age males drinking alcohol. The officers then entered the
backyard through a gate, thereby obtaining a clear view
into the back of the house through a screen door and two
windows. The officers saw four adults restraining one
juvenile. The juvenile broke free, swung a fist and struck
one of the adults in the face. Two officers then opened the
screen door and “hollered” to identify themselves. When no
one heard them, they entered the kitchen. After entering,
one of the officers again shouted to identify and call
attention to himself. As those present in the kitchen
became aware of the officers, they became angry that the
officers had entered the house without permission.
* Search and seizure cases are “highly fact dependant.” State v.
Warren, 2003 UT 36, J 2, 78 P.3d 590. Therefore, the trial court’s factual
findings are supplemented with relevant, objective facts gleaned from
testimony given during the evidentiary hearing that was held on March
22, 2001.
App. 3
{3 The officers subsequently arrested the adults.
They were charged with contributing to the delinquency of
a minor, disorderly conduct, and intoxication. The defen-
dants filed a motion to suppress which gave rise to this
petition. '
{4 The trial court entered the following findings of
fact in support of its order granting the motion to sup-
press:
“1. On duly 23, 2001, at approximately 3:00
a.m., four Brigham City Police officers were dis-
patched ... as a result of a call concerning a loud
party.
2. After arrival at the residence, the officers,
from their observations from the front of the resi-
dence, determined that it was obvious that
knocking on the front door would have done no
good. It was appropriate that they proceed down
the driveway alongside the house to further in-
vestigate.
3. After going down the driveway on the side of
the house, the officers could see, through a slat
fence, two juveniles consuming alcoholic bever-
ages. At that point, because of the juveniles,
there was probable cause for the officers to enter
into the backyard.
4. Upon entering the backyard, the officers ob-
served, through windows and a screen door an
altercation taking place, wherein it appeared
that four adults were trying to control a juvenile.
At one point, the juvenile got a hand loose and
smacked one of the occupants of the residence in
the nose.
App. 4
5. At that point in time, the court finds no exi-
gent circumstances to justify the officers’ entry
into the residence. What he should have done, as
required under the 4th amendment, was knock
on the door. The evidence is that there was a
loud, tumultuous thing going on, and the evi-
dence is that the occupants probably would not
have heard, but under the 4th amendment he
has an obligation to at least attempt before en-
tering.”
Brigham City v. Stuart, 2002 UT App 317, ¥ 12, 57 P.3d
1111 (quoting trial court order).
{5 The court of appeals determined that Brigham
City had not challenged the trial court’s findings of fact
and denied an attempt by Brigham City to supplement the
factual findings. Jd. at | 6. The court of appeals adopted
the facts as found by the trial court and based its holding
on them. Jd.
q6 Brigham City has urged us to expand our review
of the facts to include all of the evidence received at the
suppression hearing. Brigham City did not, however, ask
us to review the court of appeals’s denial of its attempt to
expand the scope of reviewable facts. We therefore confine
the factual component of our review to the facts considered
by the court of appeals.
STANDARD OF REVIEW
{7 When reviewing cases under certiorari jurisdic-
tion, we apply a standard of correctness to the decision
made by the court of appeals rather than the trial court.
State v. Warren, 2003 UT 36, 7 12, 78 P.3d 590. However,
the ultimate question of whether a particular set of facts
App. 5
satisfies a given legal standard is a mixed question of law
and fact. State v. Pena, 869 P.2d 932, 936 (Utah 1994).
98 We recently announced our intention to review
for correctness mixed questions of law and fact in search
and seizure cases and to undertake this task based on a
totality of the circumstances. State v. Brake, 2004 UT 95,
q 15, 103 P.3d 699. In Brake, we cited a desire to develop
uniform search and seizure standards to aid law enforce-
ment officers as the reason for adopting a less deferential
standard when reviewing whether a particular set of facts
surrounding a warrantless search or seizure offended
constitutional protections. Id. at J 14. The court of appeals
issued its opinion in this case before we modified the
standard of review in Brake. Although we conduct our
review under the standard announced in Brake, we never-
theless reach the same conclusion that the court of appeals
reached under its “measure of deference” standard.
79 The accuracy of the subsidiary facts relied upon
by the court of appeals was unchallenged. Our review is
therefore limited to the correctness of the legal conclusion
reached by the trial court and ratified by the court of
appeals that no exigent circumstances justified the offi-
cers’ entry into the home.
410 Our aspiration to provide useful guidance to
those charged with the day-to-day responsibility of putting
search and seizure law into practice is handicapped by the
manner in which search and seizure cases are presented to
us. This case, like Brake and an array of its search and
seizure predecessors, either does not raise or inadequately
* E.g., State ex rel. A.C.C., 2002 UT 22, 44 P.3d 708; State v. Norris,
2001 UT 104, 48 P.3d 872; State v. Bisner, 2001 UT 99, 37 P.3d 1073.
App. 6
briefs a state constitutional claim. The reluctance of
litigants to take up and develop a state constitutional
analysis is surprising in light of our repeated statements
that federal Fourth Amendment protections may differ
from those guaranteed our citizens by our state constitu-
tion. See, e.g., State v. Debooy, 2000 UT 32, 4 12, 996 P.2d
546 (“While this court’s interpretation of article I, section
14 has often paralleled the United States Supreme Court’s
interpretation of the Fourth Amendment, we have stated
that we will not hesitate to give the Utah Constitution a
different construction where doing so will more appropri-
ately protect the rights of this state’s citizens.”); State v.
Watts, 750 P.2d 1219, 1221 n.8 (Utah 1988) (“[C]hoosing to
give the Utah Constitution a somewhat different construc-
tion may prove to be an appropriate method for insulating
this state’s citizens from the vagaries of inconsistent
interpretations given to the fourth amendment by the
federal courts.”); State v. Hygh, 711 P.2d 264, 271-73 (Utah
1985) (Zimmerman, J., concurring) (stating that state and
federal search and seizure law are not identical).
¥11 In Brake, for example, we took issue with the
usefulness of federal Fourth Amendment jurisprudence
concerning the police officer safety justification for war-
rantless automobile searches. Brake, 2004 UT 95 at {J 27-
31. Our reasoning in Brake emanated to a great extent
from cases in which we concluded that article I, section 14
of the Utah Constitution provides a greater expectation of
privacy than the Fourth Amendment as interpreted by the
United States Supreme Court.
{12 Where the parties do not raise or adequately
brief state constitutional issues, our holdings become
inevitably contingent. They carry within them an implicit
qualification that if properly invited to intervene, our
App. 7
state’s Declaration of Rights might change the result and
impose different demands on police officers and others who
in a very real sense are the everyday guardians of consti-
tutional guarantees against unreasonable searches and
seizures.
¥13 In the not so distant history of this court, we
engaged in an ongoing and robust discussion over whether
and to what extent we should defer to the federal courts
when called upon to interpret provisions of our Declara-
tion of Rights, which parallel the federal Bill of Rights.
State v. Anderson, 910 P.2d 1229, 1234-42 (Utah 1996);
State v. Poole, 871 P.2d 531, 534-36 (Utah 1994); State v.
Larocco, 794 P.2d 460, 465-71 (Utah 1990). In Anderson,
we counseled against departing from the guidance from
federal courts except when “compelling circumstances”
required it. 910 P.2d at 1235. To do otherwise would cause
unnecessary confusion and undercut the policy objective of
giving clear direction to judges and law enforcement
officials. Id. Justice Stewart in his concurrence cautioned
against unquestioning fealty to federal precedent on
matters of individual liberty. Jd. at 1240. He defended his
view by noting that “(t]he framers of the Utah Constitu-
tion necessarily intended that this Court should be both
the ultimate and final arbiter of the meaning of the
provisions in the Utah Declaration of Rights and the
primary protector of individual liberties.” Id.
414 The debate over the proper relationship between
the Bill of Rights and Declaration of Rights has lain
dormant for almost a decade. This lull does not signal
resolution of the matter. The mere passage of time and the
accumulation of decisions issued by this court on appeals
brought solely on Fourth Amendment grounds may, how-
ever, ultimately overpower the merits of an independent
App. 8
analysis of search and seizure law under our Declaration
of Rights. It would be unfortunate, indeed, if such a de
facto abdication of our responsibility as guardians of the
individual liberty of our citizens were to occur. Because we
are resolute in our refusal to take up constitutional issues
which have not been properly preserved, framed and
briefed, State v. Holgate, 2000 UT 74, ¥ 11, 10 P.3d 346;
State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994), we are
once again foreclosed from undertaking a -principled
exploration of the interplay between federal and state
protections of individual rights without the collaboration
of the parties to an appeal. This collaborative effort should
be renewed.
ANALYSIS
415 The right to be free of unreasonable searches
and seizures is one of the most cherished rights guaran-
teed by the Utah and United States Constitutions. State v.
Trane, 2002 UT 97, 721, 57 P3d 1052. The Fourth
Amendment to the United States Constitution states:
The right of the people to be secure in their per-
sons, houses, papers, and effects, against unrea-
sonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirma-
tion, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const. amend IV. A “cardinal principle” derived by
this language is that warrantless searches “‘are per se
unreasonable under the Fourth Amendment.’” Mincey v.
Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United
States, 389 U.S. 347, 357 (1967)). Nowhere is this principle
more zealously guarded than in a person’s home, which is
App. 9
one of four domains expressly granted the security prom-
ised by the Fourth Amendment. The Supreme Court has
interpreted the Fourth Amendment as “drawl|ing] ‘a firm
line at the entrance to the house,’” Kyllo v. United States,
533 U.S. 27, 40 (2001) (quoting Payton v. New York, 445
U.S. 573, 590 (1980)), where even an “officer who barely
cracks open the front door and sees nothing” is deemed to
have violated its venerable protections, id. at 37.
416 Even this most highly protected realm may,
however, be subject to intrusion in exceptional circum-
stances where “the needs of law enforcement [are] so
compelling that the warrantless search is objectively
reasonable under the Fourth Amendment.” Mincey, 437
U.S. at 394. We have acknowledged that the requisite
compelling need to enter a dwelling exists in the presence
of probable cause and exigent circumstances. State v. Ashe,
745 P.2d 1255, 1258-59 (Utah 1987). Probable cause exists
where the facts that an officer has acquired from reasona-
bly trustworthy sources are sufficient to permit a reasona-
bly cautious person to believe that an offense has been, or
is being, committed. State v. Dorsey, 731 P.2d 1085, 1088
(Utah 1986).
{17 Here, the officers’ observation of the consump-
tion of alcohol by underage youths and the blow struck by
the juvenile in the kitchen of the dwelling were sufficient
to establish probable cause and thus are not at issue.
Brigham City instead challenges the court of appeals’s
determination that exigent circumstances did not exist.
418 The court of appeals has correctly characterized
exigent circumstances as “those ‘that would cause a.
reasonable person to believe that [immediate] entry ...
was necessary to prevent physical harm to the officers or
App. 10
other persons, the destruction of relevant evidence, the
escape of the suspect, or some other consequence improp-
erly frustrating legitimate law enforcement efforts.’” State
v. Beavers, 859 P.2d 9, 18 (Utah Ct. App. 1993) (quoting
United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.
1984)).
q¥19 Among the categories of possible exigent cir-
cumstances, only one is relevant here: whether the alter-
cation within the dwelling and the blow struck by the
juvenile could give rise to the officers’ reasonable belief
that their immediate entry was necessary to prevent
physical harm to the occupants of the house. With this
refinement of our inquiry, we confront the nub of the
matter: how grave must the impending harm be to create
an exigent circumstance? According to Brigham City, the
answer to this question is “not very.” Brigham City insists,
not implausibly, that it would “defy reason to suppose that
peace officers must secure a warrant or consent before
entering a house to break up a fight.” Brigham City finds
support for this view in the observation of Judge Bench in
his dissenting opinion that “[iJt is nonsensical to require
officers, charged with keeping the peace, to witness this
degree of violence and take no action until they see it
escalate further.” Brigham City v. Stuart, 2002 UT App
317, J 20, 57 P.3d 1111.
{20 Such a restraint on police officer intervention
would almost certainly justify the label “nonsensical” were
it to describe a melee in the street or another venue
unguarded by the Fourth Amendment. However, that the
intrusion in question occurred within the confines of a
dwelling is the unique fact that sets two forces on a colli-
sion course: the constitutional protections afforded houses,
and our societal commitment to the peacekeeping mission
App. 11
of law enforcement officials. It is these two forces that
must be balanced in assessing the reasonableness of an
officer’s warrantless entry into a home.
G21 Brigham City presents us with two primary
arguments, both of which were endorsed in Judge Bench’s
dissenting opinion below, Stuart, 2002 UT App 317 at
{{ 17-22. First, Brigham City argues that a showing of
exigent circumstances was unnecessary because the entry
could have been alternatively justified under the emer-
gency aid doctrine. See id. at J 19 n.1 (“The officers might
also have been justified in entering the residence pursuant
to the emergency aid doctrine, a variant to the exigent
circumstances exception.”). Second, Brigham City argues
that the facts of this case were sufficient to present exi-
gent circumstances. Jd. at 7 21. In reaching this same
conclusion, Judge Bench compared the facts in Stuart to
those in State v. Comer, 2002 UT App 219, 51 P.3d 55, a
court of appeals case affirming the lawfulness of an entry
into a home by officers responding to a call that a family
fight was in progress, and concluded that here, greater
evidence of actual or threatened harm likewise justified a
warrantless entry of the house. Stuart, 2002 UT App 317
at 7] 17-19. Judge Bench rejected the majority’s assertion
that Comer was narrowly applicable to warrantless entries
based on evidence of domestic violence. Jd. at | 20. We
address each of Brigham City’s arguments in turn.
I. EMERGENCY AID DOCTRINE
422 Under the emergency aid, or medical emergency,
doctrine, law enforcement officers may enter a dwelling
without a warrant. The emergency aid doctrine strikes a
balance between the rights protected by the Fourth
App. 12
Amendment and the interests of government to access a
dwelling to safeguard the well-being of citizens. The
doctrine permits police to make “warrantless entries and
searches when they reasonably believe that a person
within is in need of immediate aid . . . [because] ‘[t]he need
to protect or preserve life or avoid serious injury is justifi-
cation for what would be otherwise illegal absent an
exigency or emergency.” Mincey, 437 U.S. at 392 (quoting
Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir.
1963)); see also State v. Frankel, 847 A.2d 561, 568 (N.J.
2004) (“The emergency aid doctrine is derived from the
commonsense understanding that exigent circumstances
may require public safety officials, such as the police . . . to
enter a dwelling without a warrant for the purpose of
protecting or preserving life, or preventing serious in-
jury.”). The purpose and motivation for actions performed
under the emergency aid doctrine distinguish them from
conduct subject to constitutional oversight. Officers who
render emergency aid are not serving as peacekeepers or
in a law enforcement capacity, but rather as caretakers.
123 Utah courts have adopted a three-prong test
that renders a warrantless search lawful under the emer-
gency aid doctrine when the following conditions are met:
“(1) Police have an objectively reasonable basis
to believe that an emergency exists and believe
there is an immediate need for their assistance
for the protection of life.
(2) The search is not primarily motivated by in-
tent to arrest and seize evidence.
(3) There is some reasonable basis to associate
the emergency with the area or place to be
searched.”
App. 13
Comer, 2002 UT App 219 at 7 5 n.1 (quoting Salt Lake
City v. Davidson, 2000 UT App 12, 12, 994 P.2d 1283).
Because officers who act under the emergency aid doctrine
are not conducting a law enforcement mission, they may
do so without either obtaining a warrant or demonstrating
the presence of probable cause or exigent circumstances.
724 To reduce the likelihood of misuse of the emer-
gency aid doctrine as a less demanding substitute for a
warrant or the more traditional justifications for a war-
rantless search, the emergency aid entry is justified only
where there is “some reliable and specific indication of the
probability that a person is suffering from a serious
physical injury.” Jd. at { 20 (emphasis added). This stan-
dard has been further refined to require an “objectively
reasonable belief that an unconscious, semi-conscious, or
missing person feared injured or dead” is in the home. Jd.
at 9719. Furthermore, because of the emergency aid
doctrine’s link to a police officer’s caretaking, it may be
invoked only when the purpose of the intrusion is to
“enhance the prospect of administering appropriate
medical assistance, and the rationale is that the need to
protect life or avoid serious injury to another is para-
mount.” Tracy A. Bateman, Annotation, Lawfulness of
Search of Person or Personal Effects Under Medical Emer-
gency Exception to Warrant Requirement, 11 A.L.R.5th 52
§ 2(a); see also Frankel, 847 A.2d at 569 (test under emer-
gency aid doctrine states that the public safety official’s
“primary motivation for entry into the home must be to
render assistance”).
{25 What the content and rationale of the emer-
gency aid doctrine make clear is that, notwithstanding a
generalized desire or expectation that police officers can
and will intervene to aid those who suffer injury, the value
App. 14
we place on constitutional protections afforded a dwelling
imposes a heightened threshold on the degree of actual or
impending harm which will justify such an intrusion.
Consequently, intrusions to administer aid to less severe
injuries may render unconstitutional a search or seizure
made incident to the warrantless entry.
(26 The balancing of interests that informs the
emergency aid doctrine does not, contrary to Brigham
City’s assertion, sanction the entry into the defendants’
residence. The magnitude of the harm fell short of the
serious bodily injury threshold necessary to access the
emergency aid doctrine. The factual findings to which
Brigham City stipulated indicate only that “[a]t one point,
the juvenile got a hand loose and smacked one of the
occupants of the residence in the nose.” Stuart, 2002 UT
App 317 at 7 12. The findings of fact disclose nothing to
indicate that the officers found it necessary to render
medical assistance to the victim of the juvenile’s blow or
otherwise minister to an injury of the severity necessary to
support the invocation of the emergency aid doctrine.’
Instead, the record reveals that the officers acted exclu-
sively in their law enforcement capacity, arresting the
adults for alcohol related offenses, and providing no
medical assistance whatsoever.
* The facts of this case are similar to those in People v. Allison, 86
P.3d 421, 423-24 (Colo. 2004), wherein the police responded to a 911
hang-up call, removed a married couple with slight facial injuries, and
then re-entered their residence to look for other victims. In holding that
the emergency aid doctrine did not apply, the court found it significant
that the police did not ask the couple if anyone needed medical assis-
tance before entering the home. /d. at 429.
App. 15
{27 We recognize that upon entering a residence, an
officer may encounter unanticipated circumstances that
may heighten or diminish the nature of the emergency
that initially prompted officers to enter a dwelling. How-
ever, in this case, the officers had a clear view of the
interior of the house from their position in the backyard.
Any evidence that existed to support an emergency aid
entry was acquired by the officers from their position
outside the house and not from developments in the
altercation that occurred after they entered the kitchen.
Therefore, the circumstances known to the officers at the
time of entry did not create a reasonable belief that
emergency aid was required.
II]. EXIGENT CIRCUMSTANCES DOCTRINE
(28 We next turn to the question of whether the
officers’ intrusion was justified as a law enforcement
activity undertaken pursuant to exigent circumstances.
The level of harm necessary to invoke the emergency aid
doctrine clearly satisfies the exigent circumstances stan-
dard. See United States v. Holloway, 290 F.3d 1331, 1337
(11th Cir. 2002) (“[Wle conclude emergency situations
involving endangerment to life fall squarely within the
exigent circumstances exception.”). The question we
confront here, however, is whether some lesser actual or
threatened harm than that required to justify an emer-
gency aid intrusion will support a warrantless search
based on exigent circumstances and, if it can, whether the
conduct which stimulated the Brigham City officers to
enter the residence meets this standard. We conclude that
although the range of actual or imminent injury that will
support an exigent circumstances intrusion is more expan-
sive than that available under the emergency aid doctrine,
App. 16
the court of appeals correctly held that exigent circum-
stances did not justify the Brigham City officers’ war-
rantless intrusion.*
129 The primary rationale for permitting police
officers greater latitude in justifying an exigent circum-
stances intrusion than an emergency aid intrusion flows
from the different role assumed by officers acting in the
face of exigent circumstances. Officers who act in the face
of exigent circumstances are pursuing a law enforcement
mission, not acting as caretakers. Although this classifica-
tion scheme is artificial and simplistic, representing just
two of many roles that trained police officers integrate
confidently and intuitively in their professional lives, it
does provide a useful tool to help understand and evaluate
warrantless intrusions. It is the presence or absence of
probable cause that gives analytical direction to whether a
police officer entering a home without a warrant has done
so as a caretaker under the emergency aid doctrine or in a
law enforcement capacity under the exigent circumstances
standard.
430 To justify a warrantless entry based on exigent
circumstances, a reasonable person must believe that the
entry “was necessary to prevent physical harm to the
officers or other persons.” Beavers, 859 P.2d at 18. This
standard demands a lesser degree of harm or threat of
harm than that necessary to invoke the emergency aid
doctrine. The distinction between the approaches to harm
* The court of appeals appears to have applied a threshold of harm
under the exigent circumstance doctrine similar to that required to
justify an emergency aid intrusion when it observed that the trial court
made no findings to support “an immediate serious threat or ... a
threat of escalating violence.” Stuart, 2002 UT App 317 at J 13.
App. 17
taken by the emergency aid and exigent circumstances
doctrines is evident from the inclusion of officer safety as a
consideration in passing judgment on an entry justified as
an exigent circumstance. An officer who acts in a caretaker
capacity when providing emergency aid is not likely to
expose himself to the risk of harm. The sole consideration
is the well being of persons inside a dwelling who are
entitled to privacy, but who also may be in dire need of aid.
9431 The same cannot be said for the officer faced
with probable cause that a crime has been committed.
Officer safety is of concern whenever an officer acts in his
law enforcement role. The degree of potential harm to an
officer that is necessary to create an exigent circumstance
is minimal, reflecting the high value we place on the
security of peace officers. See State v. James, 2000 UT 80,
{ 10 n.3, 13 P.3d 576 (citing Knowles v. Iowa, 525 US. 113,
117-18 (1998)) (noting that the threat to an officer’s safety
in a routine traffic stop is significantly less than in a
custodial arrest, but nevertheless high enough to merit
asking the driver to step out of the vehicle).
{32 The safety of the Brigham City officers is not at
issue here. The sole justification for the warrantless entry
was the safeguarding of the inhabitants of the dwelling.
The rationale for the reduced quantum of harm necessary
to justify an exigent circumstance intrusion for the officer
does not extend to the inhabitants of a home. Our respect
for officer safety flows from our recognition of the dangers
inherent in law enforcement. However, the license ex-
tended to law enforcement to protect themselves from
harm does not apply when the “other persons” covered by
the Beavers articulation of the exigent circumstances
standard are the inhabitants of a dwelling. Unlike law
enforcement officers, the inhabitants own the right to be
App. 18
free in their homes from unreasonable searches and
seizures. They may well choose to expose themselves to
greater actual or potential harm to preserve their right to
be left alone in their homes. They may even engage in acts
that meet the legal definition of assault, thereby creating
probable cause, but that nevertheless do not create an
exigent circumstance authorizing a warrantless intrusion.
¥33 Although linked in the Beavers formulation of
exigent circumstances, law enforcement officers and
inhabitants of dwellings do not share the same threshold
of harm necessary to justify a warrantless entry based on
exigent circumstances because each possesses different
and distinct interests. To the inhabitant of a dwelling who,
unlike the law enforcement officer, does not face the
reality of danger as a constant workday presence, the
warrantless intrusion of a law enforcement officer may be
an unwelcome invasion of privacy, even if the inhabitant
has sustained an injury. Consequently, the difference
between the quantum of harm necessary to invoke the
emergency aid and exigent circumstances doctrines is
greatest when probable cause is present and a law en-
forcement officer is exposed to risk, but is of lesser magni-
tude when the threat of harm is to the inhabitant of the
dwelling.
734 Here the Brigham City officers entered the
home after witnessing four adults attempt to restrain a
juvenile, the juvenile break a hand free and strike an
adult in the face, and the adults struggle to regain control
of the juvenile. When, after entering the kitchen of the
house, the officer gained the attention of its occupants the
altercation abated. It was the acknowledged presence of
the authority of the police that quenched the heat in the
kitchen.
App. 19
¥35 The degree of harm suffered by the adult victim
of the juvenile’s blow certainly nudges the line of that
degree of harm sufficient to create an exigent circum-
stance. The restraint of the juvenile by the adults, both
before and after the blow was struck, is less worthy of
justifying an exigent circumstance, but underscores the
reality that this case presents us with a close and difficult
call. The efforts by the adults to control the juvenile
certainly met the legal definition of an assault. If all that
were required to authorize a warrantless entry into a
home was probable cause that an assault of any severity
whatsoever had occurred within the dwelling, the exigent
circumstance component of the doctrine would disappear,
subsumed within the probable cause requirement.’ The
record reveals that the police officers heard the adults
couple their efforts to physically restrain the juvenile with
demands that he “calm down.” The scene that played out
before the officers prior to their entry into the kitchen was
one in which the unanswered question was not whether
the occupants of the kitchen were going to escalate the
violence but instead whether the adults would be success-
ful in accomplishing their goal of subduing the juvenile.
{36 It is reasonable to believe that while still outside
the house the police officers understood that a display of
official authority would likely have the desired effect of
restoring peace. That is in fact what occurred after the
police entered the house. The spreading awareness of
police presence ended the confrontation between the
* The nature of a crime or suspicion of criminal activity creating
probable cause can, however, contribute to establishing exigent
circumstances. State v. Schlosser, 774 P.2d 1132, 1137 (Utah 1989)
(citing United States v. Hensley, 469 U.S. 221, 226 (1985)).
App. 20
adults and the juvenile. As noted by the trial court, the
officers made no attempt to knock before entering. While
the trial court noted further that owing to the noise and
tumult in the kitchen a knock “probaoly would not have
been heard,” the officers nevertheless gave no thought to
the constitutional implications associated with where they
announced their presence. On the July night of the inci-
dent, only a screen door separated the officers from the
kitchen. We are left to speculate, although our foray into
speculation is appropriate here, whether the officers could
have achieved the two-fold objective of quelling the distur-
bance by making their presence known and honoring the
constitutional integrity of the dwelling.
937 Our task is to pass judgment on whether the
intrusion was reasonable taking into account all the
circumstances. Pennsylvania v. Mimms, 434 U.S. 106, 109 -
(1977) (citing Terry v. Ohio, 392 U.S. 1, 19 (1968)). When it
singled out for criticism the officers’ failure to knock in
advance of entering the dwelling, the trial court was ne
attempting to balance its ruling atop a slender and fragile
legal technicality. It was, instead, securing its decision to
the sturdier foundation of the deeply rooted constitutional
and statutory’ dignity afforded a dwelling. We therefore
agree with the court of appeals and the trial court that the
Brigham City officers entered the dwelling without aid of
an exigent circumstance.
* See Utah Code Ann. §77-7-8 (2003) (officer must demand
admission and explain purpose for entering before making a forcible
entry to a building or dwelling in order to arrest an occupant) and § 77-
23-210 (2003) (officer must give notice of authority and purpose before
executing search warrant).
App. 21
738 In considering the exigent circumstances doc-
trine, the court of appeals split over the applicability of its
opinion in State v. Comer, 2002 UT App 219, to the Brig-
ham City intrusion. Stuart, 2002 UT App 317. In Comer,
police officers responded to a citizen’s report of a domestic
fight. Comer, 2002 UT App 219 at 7 2. A female occupant
of the residence answered the officers’ knock on the door.
Id. The occupant stepped onto the porch, where the offi-
cers explained why they were there. Jd. After telling the
officers that her husband was inside the home, the occu-
pant “immediately turned and walked back inside the
residence.” Id. The officers followed and came upon the
husband who had scratch marks on his upper body. Id. at
{ 3. The court of appeals affirmed the trial court’s finding
of exigent circumstances. Id. at { 27.
439 Judge Bench’s dissent in Stuart found Comer to
be controlling. Stuart, 2002 UT App 317 at 417. The
majority limited Comer’s reach to “domestic violence”
situations. Jd. at n.2. Judge Bench found this to be an
unsatisfying distinguishing characteristic. Jd. at J 20.
According to him, it makes little sense to hold police
officers to a dual standard, barring an intrusion into a
home when conduct amounting to an assault occurs
between persons who do not meet the definition of “cohabi-
tants,” but permitting it when they do. Jd. He implies that
since assaultive conduct within a home will frequently be
accompanied by ambiguity over its status as “domestic
violence,” all assaults which occur within a home should
be presumed to be between cohabitants and therefore
police officers who respond to them should be entitled to
App. 22
access the home under the exigent circumstance analysis
which sanctioned the intrusion in Comer. Id.’
q¥40 Although we express no view on whether Comer
was correctly decided, we note the Fourth Amendment
protections afforded a dwelling and the unquestioned evils
of domestic violence are powerful forces pulling a police
officer standing on the threshold of a home in opposite
directions: the Fourth Amendment pushing him toward a
magistrate and a warrant, domestic violence drawing him
through the door to intervene in one of the most common
end volatile settings for serious injury or death. We are
wary of making sweeping pronouncements in the face of
these important, but contradictory, concerns. We also
decline to signal our approval for any categorical extension
of the exigent circumstances which would permit a war-
rantless entry into a home, even where to do so may prove
beneficial in controlling the scourge of domestic violence,
because a categorical extension would unduly threaten the
special protection the Fourth Amendment bestows on
people in their homes.
441 Moreover, Comer differs factually from this case
in one significant respect not addressed by the court of
appeals. The single fact that tipped the balance in favor of
concluding that the Comer intrusion was reasonable and
justified as an exigent circumstance was the abrupt and
" The Utah Legislature has defined “domestic violence” as “any
criminal offense involving violence ... when committed by one cohabi-
tant against another.” Utah Code Ann. § 77-36-1(2) (2003). By this
definition, any altercation taking place within a home may result in a
reasonable belief that the participants are cohabitants committing
domestic violence. This interpretation would appear to be consistent
with the elevated status of domestic violence as an exigent circum-
stance advanced by Judge Bench in his dissent.
App. 23
unexplained re-entry into the home by the female occu-
pant after she had been made aware of the fact of and
purpose for the police officers’ presence at her home. See
2002 UT App 219 at { 26 (noting that the female occu-
pant’s re-entry may have indicated to the officers that any
number of situations was about to occur, including the
continuation of the altercation or an attempt to cover up
evidence). The court of appeals surmised that the female’s
odd behavior reasonably heightened the officers’ suspicions
that her retreat into the dwelling would be followed by the
commission of a domestic assault. Jd. In contrast, the
officers in this case could not assess whether assaultive
behavior would continue after their presence was made
known to the occupants of the dwelling before entering the
kitchen because they made no effort to announce their
presence.
742 In Mincey, the United States Supreme Court
struck down Arizona’s murder scene exception — a per se
rule permitting warrantless searches whenever a homicide
is committed. 437 U.S. at 395 (“[A] warrantless search .. .
[was] not constitutionally permissible simply because a
homicide had recently occurred.”); see also Payton, 445
U.S. at 590 (exigent circumstances required to cross
threshold into home despite state statute authorizing
warrantless entry to make felony arrests). More recently,
the Supreme Court has explained that
we have treated reasonableness as a function of
the facts of cases so various that no template is
likely to produce sounder results than examining
the totality of circumstances in a given case; it is
too hard to invent categories without giving short
shrift to details that turn out to be important in
App. 24
a given instance, and without inflating marginal
ones.
United States v. Banks, 540 U.S."3I, 36 (2003) (discussing
reasonableness in execution of search warrants).
{43 Similarly, in Comer, the Utah Court of Appeals
“decline{[d] to adopt a rule whereby a reliable domestic
disturbance report, by itself, would be viewed as support-
ing” a warrantless entry based on a presumed “serious
physical injury.” Comer, 2002 UT App 219 at { 20. Al-
though a serious crime, domestic violence reports “run the
whole range from simply having a verbal argument to
severe violence.” Jd. at ¥ 5. Furthermore, Utah law per-
mits officers to “use all reasonable means” they may deem
“reasonably necessary to provide for the safety of the
victim and any family or household member” where
domestic violence is apparent. Utah Code Ann. § 77-36-
2.1(1)(a) (2003) (emphasis added). Thus, even in instances
of domestic violence, police are required to assess the
situation and conform their actions to a standard of
reasonableness, entering only when an exigency is pre-
sent. See Comer, 2002 UT App 219 at J 27 n.11 (the police
“can effectively address the volatility of domestic disputes
through the existing exigent circumstances exception to
the warrant requirement” (emphasis added)); see also
United States v. Davis, 290 F.3d 1239, 1244 (10th Cir.
2002) (“[Wle hold an officer’s warrantless entry of a
residence during a domestic call is not exempt from the
requirement of demonstrating exigent circumstances.”);
State v. Frankel, 847 A.2d 561 (N.J. 2004) (rejecting per se
rule permitting warrantless entry on basis of a 911 hang-
up call); Commonwealth v. Kiser, 724 N.E.2d 348, 351
(Mass. App. Ct. 2000) (loud party is “not the sort of riotous
App. 25
behavior that justified entry under the statute” which was
intended to permit entry for breach of peace).
144 We are also unwilling to replace the reasonable-
ness requirement with a per se rule concerning domestic
violence that disregards other factors in the totality of the
circumstances. Our rejection of a rule that would grant a
suspicion of domestic violence the status of a per se exi-
gent circumstance does not render considerations of
domestic violence irrelevant. Just as it would be unwise to
permit factors bearing on domestic violence to sweep aside
other relevant considerations when applying a totality of
the circumstances assessment, it would be likewise im-
proper to dismiss the domestic violence as a factor which
could contribute to a finding of exigent circumstances.
There was no finding that any of the parties to the alterca-
tion in the Brigham City home were cohabitants, and
therefore, domestic violence considerations have no place
in the evaluation of whether exigent circumstances justi-
fied the intrusion.
445 The decision of the court of appeals is affirmed.
446 Chief Justice Durham and Justice Parrish concur
in Justice Nehring’s opinion.
DURRANT, Justice, concurring and dissenting:
447 Although I agree with much of the majority’s
opinion, I respectfully dissent from its application of the
exigent circumstances doctrine to the facts of this case. In
my view, the Fourth Amendment does not prescribe
paralysis when law enforcement officials are eyewitnesses
App. 26
to an ongoing assault and immediate intervention is
necessary to prevent physical harm.
{48 The question posed by this appeal is whether
police officers who personally witness an ongoing physical
altercation in a residence may enter that residence in
order to prevent bodily harm, or whether those officers
must remain rooted onlookers, waiting passively for
violence to escalate to a point at which severe harm is
likely to occur. Unlike the majority, I conclude that the
Fourth Amendment does not require police officers to be
spectators in the face of ongoing violence and, in fact,
allows officers to intervene in circumstances like those
present in this case.
749 The Fourth Amendment protects “[t]he right of
the people to be secure in their persons, houses, papers
and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. Although the amendment has been
interpreted as drawing “a firm line at the entrance to the
house,” Payton v. New York, 445 U.S. 573, 590 (1980), that
line can be crossed so long as the government entry is
reasonable under the circumstances, see [Illinois v.
McArthur, 531 U.S. 326, 330 (2001) (observing that the
Fourth Amendment’s “‘central requirement’ is one of
reasonableness”); Pennsylvania v. Mimms, 434 U.S. 106,
108-09 (1977) (“The touchstone of our analysis under the
Fourth Amendment is [and] always [has been] the reason-
ableness in all the circumstances of the particular gov-
ernmental invasion of a citizen’s personal security.”
(internal quotation omitted)).
750 It is well established that “searches and seizures
inside a home without a warrant are presumptively
unreasonable.” Payton, 445 U.S. at 586. However, “(t]he
App. 27
ordinary requirement of a warrant is sometimes sup-
planted by other elements that render the unconsented
search ‘reasonable.’” Jilinois v. Rodriguez, 497 U.S. 177,
185 (1990). As the majority correctly acknowledges, a
warrantless entry into a home is reasonable if the entry
can be justified under either the emergency aid or exigent
circumstances doctrine. See, e.g., Welsh v. Wisconsin, 466
U.S. 740, 749-50 (1984); State v. Comer, 2002 UT App 219,
49 17, 21, 51 P3d 55; State v. Beavers, 859 P.2d 9, 18
(Utah Ct. App. 1993). Both of these doctrines allow for
warrantless entries to prevent physical harm. See, e.g.,
Mincey v. Arizona, 437 U.S. 385, 392 (1978) (stating that
the need to protect life or prevent injury in an emergency
or exigent situation justifies otherwise unconstitutional
behavior); Comer, 2002 UT App 219 at 7 5 n.1 (noting that
the emergency aid doctrine can be invoked when officers
“have an objectively reasonable basis to believe that an
emergency exists and believe there is an immediate need
[of] assistance for the protection of life”); Beavers, 859 P.2d
at 18 (observing that exigent circumstances exist when
officers reasonably believe immediate entry is required “to
prevent physical harm to the officers or other persons”
(internal quotation omitted)).
q¥51 I agree with the majority that, in this case, the
trial court’s factual findings cannot be read to justify the
officers’ warrantless entry on the theory that the officers
were supplying “emergency aid.” I disagree, however, with
the majority’s conclusion that the situation encountered by
the officers was insufficiently “exigent” to justify an
immediate entry.
452 “There is ... no absolute test for determining
whether exigent circumstances are present because such a
determination ultimately depends on the unique facts of
App. 28
each case.” United States v. Gray, 71 F. Supp. 2d 1081,
1084 (D. Kan. 1999) (citing United States v. Anderson, 154
F.3d 1225, 1233 (10th Cir. 1998)). “Generally, exigency
does not evolve from one individual fact. Instead, there is a
mosaic of evidence, no single part of which is itself suffi-
cient.” State v. Ashe, 754 P2d 1255, 1258 (Utah 1987).
Consequently, a reviewing court must evaluate the totality
of the facts and circumstances surrounding the war-
rantless entry, see id., while considering how those facts
and circumstances “would have appeared to prudent,
cautious, trained officers,” Gray, 71 F. Supp. 2d at 1084.
753 The majority accurately acknowledges that the
emergency aid and exigent circumstances doctrines impose
different thresholds of harm that must be met before the
doctrines can be properly invoked. See supra {J 29. As
evidence of this distinction, the majority reasons that
officers are more likely to encounter threats to their
personal safety when pursuing a law enforcement objec-
tive than when serving in a caretaking capacity. See supra
{1 29-30. That distinction does partially explain why the
exigent circumstances doctrine can be invoked in situa-
tions where the level of harm at issue is significantly lower
than in an emergency aid situation.
954 However, in my view, the pivotal reason for
requiring a lower quantum of harm in the exigent circum-
stances context is that officers invoking exigency must
first show probable cause of criminal activity before
making a warrantless entry, a requirement absent in the
emergency aid context. Because invocation of the exigent
circumstances doctrine demands the presence of probable
cause, that doctrine is a significantly less dramatic depar-
ture from typical Fourth Amendment requirements than
the emergency aid doctrine. This fact diminishes the
App. 29
necessity of demanding high level of physical harm before
allowing a warrantless entry in exigent circumstances, as
the high physical harm threshold of the emergency aid
doctrine is set, at least partially, to ensure that the doc-
trine is not utilized as mere pretext.
¥55 Here, the officers were justified in entering the
residence because, at the time of their entry, they pos-
sessed both probable cause that a continuing assault was
being committed within the residence’ and a reasonable
belief that an immediate entry was necessary to prevent
physical harm to others. See Beavers, 859 P.2d at 17-18.
756 According to the trial court, officers investigat-
ing a noise complaint observed underage drinking through
a slat fence bordering the backyard of the residence that
was the subject of the complaint. Upon entering the
backyard, the officers were able to see into the residence
through windows and a screen door. At that moment, the
officers became eyewitnesses to a physical altercation
involving five individuals, one of whom was a juvenile. The
officers saw the four adults attempting to restrain the
juvenile. It could not have been clear which of the parties
to the melee were victims and which were instigators.
Also, the officers could not have known whether they were
witnessing domestic violence, as even trained police
officers do not have the necessary clairvoyance to instantly
determine if participants in a physical altercation are
* The officers also had probable cause to believe that multiple
other crimes were occurring. Before entering the residence, the officers
had already directly observed underage drinking, intoxication, and
disorderly conduct. Arrests were ultimately made for contributing to the
delinquency of a minor, furnishing alcohol to minors, disorderly
conduct, and intoxication.
App. 30
members of the same household. The officers, while
observing the ongoing struggle, saw the juvenile wrest a
hand free and “smack” one of the adults in the nose. Given
that the officers had already observed underage drinking,
they could have reasonably believed that alcohol was
fueling the altercation, which had the potential to further
escalate and cause additional harm to the participants in
the fight. There will be uncertainties in any law enforce-
ment situation. The officers in the present case were, no
doubt, uncertain about many things. However, they were
certain that a fight was in progress, that the participants
had likely been consuming alcohol, and that at least one
individual had already sustained an injury.
957 The Fourth Amendment does not demand
certainty before action. It demands only reasonableness.
Because there is always some level of uncertainty about
the nature of events police officers encounter, “[o]n the
spot reasonable judgments by officers about risks and
dangers are protected.” Fletcher v. Town of Clinton, 196
F.3d 41, 50 (1st Cir. 1999). Already armed with probable
cause, the officers on the scene reasoned that immediate
entry was necessary to prevent harm. That judgment was
not unreasonable under the circumstances and does not
offend the Fourth Amendment. See, e.g., id. at 49 (“Evi-
dence of extreme danger in the form of shots fired, scream-
ing, or blood is not required for there to be some reason to
believe that a safety risk exists.”); Tierney v. Davidson, 133
F.3d 189, 198 (2d Cir. 1998) (“The absence of blood, over-
turned furniture or other signs of tumult” does not require
an officer “to withdraw and go about other business, or
stand watch outside the premises listening for the sounds
of splintering furniture.”); United States v. Brown, 64 F.3d
1083, 1086 (7th Cir. 1995) (“We do not think the police
App. 31
must stand outside an apartment despite legitimate
concerns about the welfare of an occupant, unless they can
hear screams. Doubtless outcries would justify entry, but
they are not essential.”).
758 The majority would have the officers in this case
stand outside, powerless and removed from the location of
the brawl. The majority would conclude otherwise, appar-
ently, if a knife had been pulled from a nearby kitchen
drawer, elevating the potential severity of physical harm
that a participant in the fight — or an innocent bystander —
could suffer. The majority's rule consigns law enforcement
to the porch steps until it is too late to prevent the very
injury the majority concedes officers are entitled to pre-
vent.”
q59 The majority contends that the officers were not
completely foreclosed from taking action: they could have
knocked. The trial court’s findings of fact illustrate,
however, that the majority puts undue emphasis on the
officers’ decision to forego knocking before intervening in
the fight. While it is true that “the method of an officer’s
entry into a dwelling [is] among the factors to be consid-
ered in assessing the reasonableness of a search and
* Of course, the circumstances in which a warrantless entry into a
home can be justified, even if the officers possess probable cause, are
rare. In fact, there will be many situations where officers who have
probable cause to believe that a technical assault is occurring within a
home will nevertheless be unjustified in entering that home without a
warrant, e.g., if an officer witnesses one individual slap another and
there was no prospect of continuing violence. After all, the Fourth
Amendment demands that any entry be reasonable under the circum-
stances. However, in this case we are dealing with the rare situation in
which ongoing violence, actually witnessed by police officers, was of a
sufficient degree to justify an immediate entry.
App. 32
seizure,” Wilson v. Arkansas, 514 U.S. 927, 934 (1995), it is
not unreasonable for officers to bypass knocking or an-
nouncing their presence if such an action would be futile,
dangerous, or inhibit an effective investigation of the
suspected crime, see Richards v. Wisconsin, 520 U.S. 385,
394 (1997); see also Ingram v. City of Columbus, 185 F.3d
579, 588 (6th Cir. 1999) (stating that just as certain
exigencies excuse the warrant requirement, certain
circumstances excuse officers from announcing their
presence before entering a dwelling). The trial court’s
unchallenged findings note that the officers encountered a
“loud, tumultuous” situation and that a knock on the door
would have almost certainly gone unnoticed. In fact,
evidence adduced below showed that, even after entering
the residence, the officers had to shout above the din
multiple times before the occupants became aware of their
presence.
¥60 When it is apparent that an immediate physical
entry into a dwelling is necessary in order to quell ongoing
violence, it is ill-advised to require officers to waste pre-
cious time on the doorstep engaged in a futile attempt to
announce their presence. The Fourth Amendment does not
require such empty gestures.
761 Although the officers in this case were faced
with uncertainties, the critical aspects of the situation
were clear. The officers were eyewitnesses to a “loud,
tumultuous,” and ongoing brawl. Alcohol was obviously
being consumed, one blow had been struck, and the
officers could have reasonably believed that their interven-
tion was necessary to prevent further injuries. In such a
potentially volatile situation, neither the Fourth Amend-
ment nor sound public policy prevents police intervention
to secure the peace and protect the public. Accordingly, I
App. 33
would conclude that the officers did not offend the Fourth
Amendment’s reasonableness requirement in the present
case and would therefore reverse the court of appeals.
9762 Associate Chief Justice Wilkins concurs in
Justice Durrant’s opinion.
App. 34
IN THE UTAH COURT OF APPEALS
— — 00000 — -
Brigham City,
a municipal corporation,
Plaintiff and Appellant,
v.
Charles W. Stuart,
Shayne R. Taylor,
and Sandra A. Taylor,
Defendants and Appellees.
OPINION
(For Official Publication)
Case No. 20010479-CA
FILED
October 3, 2002
2002 UT
App 317
First District, Brigham City Department
The Honorable Clint S. Judkins
Attorneys:
Leonard J. Carson, Brigham City, for Appellant
Rod Gilmore, Layton, for Appellees
Before Judges Bench, Greenwood, and Thorne.
THORNE, Judge:
ql Brigham City appeals from an interlocutory order
granting Defendants’ joint Motion to Suppress Evidence
App. 35
collected after Brigham City police officers entered a
private residence without first obtaining a warrant. We
affirm.
BACKGROUND
q2 On July 23, 2000, at approximately 3:00 a.m.,
four Brigham City police officers responded to a loud party
complaint. After arriving at the house, the officers pro-
ceeded to the back of the house to investigate the noise.
From the driveway, through a slat fence, the officers saw
two young men, who appeared to be under age, consuming
aleohol. The officers entered the backyard through a gate,
thereby obtaining a clear view into the back of the house.
{3 Looking into the house through a screen door and
two windows, the officers observed four adults restraining
one juvenile. The juvenile, who was struggling to break
free, managed to swing his fist and strike one of the adults
in the face. Two of the officers then opened the screen door
and stepped into the house. Only after entering the house
did one of the officers shout to identify and call attention
to himself. One by one, each person in the kitchen became
aware of and acknowledged the officers’ presence, then
become angry that the officers had entered the house
without permission.
"4 The officers subsequently arrested each of the
adults and charged them with: contributing to the delin-
quency of a minor, disorderly conduct, and intoxication.
Defendants filed a joint Motion to Suppress Evidence.
After an evidentiary hearing, the trial court granted
Defendants’ motion. Brigham City submitted a proposed
order to the trial court that contained the trial court’s
App. 36
findings of fact. That order was signed as proposed and it
is from this order that Brigham City now appeals.
ISSUES AND STANDARD OF REVIEW
q5 We review the factual findings underlying a trial
court’s decision to grant or deny a motion to suppress
evidence for clear error, and the legal conclusions for
correctness, “with a measure of discretion given to the
trial judge’s application of the legal standard to the facts.”
State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct. App. 1996).
q6 In the present case, neither party disputes the
written factual findings that support the trial court’s legal
conclusion that no exigent circumstances justified the
officers’ warrantless entry into the private residence. We
accordingly review the trial court’s application of Fourth
Amendment principles to the undisputed facts of this case.
See id.
ANALYSIS
{7 Brigham City argues the trial court erred in
determining that there were no exigent circumstances to
justify the warrantless entry into a private residence. “A
warrantless search of a residence is constitutionally
permissible where probable cause and exigent circum-
stances are proven.” State v. Yoder, 935 P.2d 534, 540
(Utah Ct. App. 1997). When a private residence is in-
volved, the State’s burden in proving the existence of
probable cause and exigent circumstances is “particularly
heavy.” Id. (citations and quotations omitted). This ele-
vated burden is a result of the “heightened expectation of
privacy” that citizens enjoy in their homes. State v. Bea-
vers, 859 P.2d 9, 13 (Utah Ct. App. 1993).
App. 37
q8 Exigent circumstances exist where a reasonable
person in the officers’ position would “‘believe that entry
was necessary to prevent physical harm to the officers or
other persons, [to prevent] the destruction of relevant
evidence, [to prevent] the escape of the suspect,’” or to
prevent the improper frustration of legitimate law en-
forcement efforts. Beavers, 859 P.2d at 18 (citation and
ellipsis omitted). In addition, the need for immediate entry
must be apparent to police at the time of entry, and so
strong as to outweigh the important protection of individ-
ual rights provided under the Fourth Amendment. See id.
q9 Our determination of exigency is based upon an
examination of the totality of the circumstances. See State
v. Wells, 928 P.2d 386, 389 (Utah Ct. App. 1996), aff’d, 939
P.2d 1204. We grant the trial court a degree of discretion
in determining the ultimate disposition because “ ‘the facts
to which the legal rule is to be applied are so complex and
varying that no rule adequately addressing the relevance
of all these facts can be spelled out.... ’” State v.
Teuscher, 883 P.2d 922, 929 (Utah Ct. App. 1994) (ellipsis
in original) (quoting State v. Pena, 869 P.2d 932, 939 (Utah
1994)).
{10 We first address Brigham City’s request, made
during oral argument, that this court make any additional
findings of fact that might be necessary to find exigent
circumstances in this case. However, an “‘appellate court
is entrusted with ensuring legal accuracy and uniformity
and should defer to the trial court on factual matters.’”
Bailey v. Bayles, 2002 UT 58,419, 52 P.3d 1158 (quoting
Willey v. Willey, 951 P.2d 226, 230-31 (Utah 1997)). The
supreme court has further determined:
App. 38
It is inappropriate for an appellate court to dis-
regard the trial court’s findings of fact and to as-
sume the role of weighing evidence and making
its own findings of fact.
The court of appeals is limited to the findings of
fact made by the trial court and may not find
new facts or reweigh the evidence. .. .
Id. at {{19-20.
{11 In addition, Brigham City has previously for-
saken an opportunity to shape the trial court’s findings of
fact.’ Brigham City has not, however, challenged the trial
court’s factual findings. We therefore accept the findings
as adopted and are in no position to supplement these
findings. Thus, based upon the factual findings set forth in
the trial court’s order, we review the trial court’s legal
conclusion that no exigent circumstances existed in this
case.
412 Brigham City next argues that the circum-
stances, as found by the court, clearly establish exigent
circumstances supporting the officers’ warrantless entry
into the private residence. The trial court made the follow-
ing findings of fact:
* The trial court first directed Defendants to draft and submit an
appropriate order. Brigham City, however, objected to the findings as
drafted and proffered a substitution. Over Defendant’s objections, the
trial court adopted Brigham City’s version of the order and findings.
Therefore, any findings Brigham City considered necessary to support a
conclusion of exigent circumstances should have been included in this
order.
App. 39
1. On July 23, 2001, at approximately 3:00
a.m., four Brigham City Police) officers were
dispatched ... as a result of a call concerning a
loud party.
2. After arrival at the residence, the officers,
from their observations from the front of the
residence, determined that it was obvious that
knocking on the front door would have done no
good. It was appropriate that they proceed down
the driveway alongside the house to further in-
vestigate.
3. After going down the driveway on the side of
the house, the officers could see, through a slat
fence, two juveniles consuming alcoholic bever-
ages. At that point, because of the juveniles,
there was probable cause for the officers to enter
into the backyard.
4. Upon entering the backyard, the officers ob-
served, through windows and a screen door an
altercation taking place, wherein it appeared
that four adults were trying to control a juvenile.
At one point, the juvenile got a hand loose and
smacked one of the occupants of the residence in
the nose.
5. At that point in time, the court finds no exi-
gent circumstances to justify the officer’s entry
into the residence. What he should have done, as
required under the 4th amendment, was knock
on the door. The evidence is that there was a
loud, tumultuous thing going on, and the evi-
dence is that the occupants probably would not
have heard, but under the 4th amendment he
has an obligation to at least attempt before en-
tering.
App. 40
413 After reviewing the trial court’s ruling, we
conclude that the trial court properly determined that the
officers’ warrantless entry into the private residence was
not justified by the circumstances. The trial court found
that some sort of altercation had occurred in the house,
but made no findings from which we could reasonably
conclude that the altercation posed an immediate serious
threat or created a threat of escalating violence. Further-
more, the officers did not immediately physically intervene
in the situation, draw weapons, or otherwise act in a
manner suggesting an emergency. Neither do the trial
court’s findings support a conclusion that the destruction
of evidence would have occurred, that the escape of any
suspect was imminent, or that any legitimate law en-
forcement effort would have been frustrated had the
officers not been granted immediate entry into the home.
On these limited facts, we affirm the trial court’s conclu-
sion that exigent circumstances did not exist.’
* In reaching its conclusion, the dissent relies upon State v. Comer,
2002 UT App 219, 51 P.3d 55, where police entered a home without a
warrant in response to a domestic violence complaint. Jd. at 923. In
Comer, “admittedly a close case,” we stated that “the officers had
probable cause to believe a domestic violence offense had been, or was
being, committed.” Id. at 925. We noted that a “‘domestic violence
complaint’ is ‘one of the most potentially dangerous, volatile arrest
situations confronting police.’” Jd. (citations omitted). We identified the
specific facts that would prompt the police to believe “there was no time
to get a warrant and/or that [their] presence was necessary to prevent
physical harm to persons or the destruction of evidence.” Jd. at 126. The
combination of these factors warranted a finding of exigent circum-
stances. See id. The holding in Comer, however, should be narrowly
construed, see id. at n.11 (characterizing the Comer opinion as adopting
approach “for analyzing warrantless police entry into a private residence
after receipt of a report of domestic violence at that residence”) and only
applies when the threat of continued domestic violence is present.
(Continued on following page)
App. 41
¥i4 Brigham City next argues that the officers were
justified in entering this private residence because the
officers observed, first-hand, the commission of a crime.
Generally, absent exceptional circumstances or plain error,
a party who fails to bring an issue to the trial court’s
attention is barred from asserting it on appeal. See State v.
Archambeau, 820 P.2d 920, 922 (Utah Ct. App. 1991).
Brigham City neither raised this argument to the trial
court, nor argued plain error or exceptional circumstances
on appeal. We therefore decline to address this argument.
CONCLUSION
{15 Because we defer to the trial court’s findings of
fact and, to a limited extent, to the trial court’s application
of those facts to the law, we conclude that the trial court
did not err in concluding that no exigent circumstances
existed under these facts. Therefore, we affirm the trial
court’s grant of Defendants’ Motion to Suppress all evi-
dence resulting from the officer’s entry into the private
residence.
The case at bar is distinguishable from Comer, for this is not a
“domestic violence” situation. Additionally, the trial court found that the
juvenile who seemed to be causing the commotion was restrained when
the police arrived. Thus, except for the fact that the juvenile’s hand
broke loose and “smacked one of the occupants of the residence in the
nose,” all violence had ceased by the time the officers arrived. Also,
unlike Comer, the police in the case at bar had a clear view of the
interior of the home and could have intervened had further violence
ensued.
App. 42
William A. Thorne Jr., Judge
416 ICONCUR:
Pamela T. Greenwood, Judge
BENCH, Judge (dissenting):
417 The outcome of this case is controlled by our
recent decision in State v. Comer, 2002 UT App 219, 51
P.3d 55. In Comer, officers arrived at a home after receiv-
ing a call from a citizen that a family fight was in pro-
gress. See id. at (2. The defendant opened the door and
stepped out onto the porch. See id. The officers explained
to her why they were there and asked if anyone else was
home. See id. The defendant did not respond, but “‘imme-
diately turned and walked back inside the residence.’” Jd.
The officers followed and discovered defendant’s husband
who had marks on his body indicating he had been as-
saulted. See id. at {3. While arresting the defendant for
assault, the officers also discovered drugs and drug para-
phernalia. See id. at 94.
{18 We concluded that both probable cause and
exigent circumstances existed to justify the officers’ war-
rantless entry into the defendant’s home. See id. at [27. We
cited several reasons why the defendant’s unexplained
behavior “would cause an officer to reasonably believe there
was no time to get a warrant and/or that his presence was
necessary to prevent physical harm to persons or the de-
struction of evidence,” including the officers’ reasonable fear
App. 43
that defendant retreated to “immediately resume the >
altercation reported.” Id. at 126.
419 If, as we concluded in Comer, an individual’s
unexplained behavior and retreat posed an exigent cir-
cumstance, then certainly a fight in progress qualifies as
an exigent circumstance. In this case, the officers re-
sponded to a citizen’s call in the middle of the night about
a “loud party or altercation.” The trial court found that the
fight they witnessed was so “loud” and “tumultuous” that
the occupants of the residence could not have heard a
knock at the door. The officers personally observed a group
of adults restrain a juvenile, who broke loose one arm and
“smacked one of the [adults] in the nose.” These findings
do not support the trial court’s conclusion that the officers’
warrantless entry into the home was not justified by
exigent circumstances.’
{20 The majority argues that Comer is distinguish-
able and should be narrowly construed to apply only to
known incidences of domestic violence. I disagree that the
exigent circumstances doctrine applies only to domestic
violence situations. However, even assuming, as the
majority does, that Comer only applies to domestic vio-
lence, this case is not distinguishable. The difference
between a simple assault and a domestic violence assault
is the relationship between the parties involved. From
their vantage point outside the house, the officers in this
case could not know whether any of the combatants in the
house were “cohabitants” as defined by Utah Code Ann.
* The officers might also have been justified in entering the
residence pursuant to the emergency aid doctrine, a variant to the
exigent circumstances exception. See Salt Lake City v. Davidson, 2000
UT App 12,710, 994 P.2d 1283.
App. 44
§ 30-6-1 (Supp. 2002). Based on the fact that a juvenile
and several adults were involved and that the altercation
was occurring at a residence, it would be reasonable for
the officers to assume that the altercation may have been
domestic violence. Further, I cannot agree with the major-
ity that the violence had ceased by the time the officers
arrived. The officers testified to witnessing a loud, tumul-
tuous altercation where one individual was being physi-
cally restrained and another had been struck. Even after
entering the house, the officers had a difficult time getting
the attention of the combatants. It is nonsensical to
require officers, charged with keeping the peace, to wit-
ness this degree of violence and take no action until they
see it escalate further.
{21 Alternatively, we could remand to the trial court
for a finding on the city’s assertion that the officers were
justified in entering the house because a crime was being
committed in their presence. The majority opinion does
not address this argument, claiming that it was not raised
before the trial court. However, the record reflects that the
city did raise the issue to the trial court in the “Plaintiff’s
Response to Motion to Suppress.” The city alleged that
“the exigent circumstances which existed included obvious
violations of the law in the plain view and presence of the
officers.” Because the trial court made no specific findings
regarding violations of law, the case could be remanded
with instructions to the trial court to address whether the
officers were justified in entering the home because a
crime was being committed in their presence.
422 Accordingly, under Comer, I would reverse the
trial court’s grant of Defendants’ motion to suppress.
Alternatively, my colleagues should remand for findings on
App. 45
the city’s argument that a crime was being committed in
the presence of the officers.
Russell W. Bench, Judge
App. 46
IN THE FIRST DISTRICT COURT,
BOX ELDER COUNTY, STATE OF UTAH
BRIGHAM CITY,
A Municipal Corporation,
ee ORDER ON MOTION TO
Plaintiff, SUPPRESS EVIDENCE
¥. Case No. 001100454,
CHARLES W. STU. ART, 001100456, and 001100460
SHAYNE R. TAYLOR, and Judge Clint S. Judkins
SANDRA A. TAYLOR,
Defendants.
This matter came before the court for hearing the
23rd day of March, 2001 on defendants’ motion to sup-
press. Brigham City was represented by James Merrell.
Defendants were present and represented by Rod Gilmore.
After the presentation of evidence, including testimony
and exhibits, the careful review of the parties’ pleadings,
and after having heard the parties’ arguments, the Court
hereby finds and orders as follows:
FINDINGS OF FACT
1. On July 23, 2001, at approximately 3:00 am., four
Brigham City police officers were dispatched to 1074
Orchard St. in Brigham City as a result of a call concern-
ing a loud party.
2. After arrival at the residence, the officers, from their
observations from the front of the residence, determined
that it was obvious that knocking on the front door would
App. 47
have done no good. It was appropriate that they proceed
down the driveway alongside the house to further investi-
gate.
3. After going down the driveway on the side of the
house, the officers could see, through a slat fence, two
juveniles consuming alcoholic beverages. At that point,
because of the juveniles, there was probable cause for the
officers to enter into the backyard.
4. Upon entering the backyard, the officers observed,
through windows and a screen door, an altercation taking
place, wherein it appeared that four adults were trying to
control a juvenile. At one point, the juvenile got a hand
loose and smacked one of the occupants of the residence in
the nose.
5. At that point in time, the court finds no exigent
circumstances sufficient to justify the officer’s entry into
the residence. What he should have done, as required
under the 4th emendment, was knock on the door. The
evidence is that there was a loud, tumultuous thing going
on, and the evidence is that the occupants probably would
not have heard him, but under the 4th amendment he has
an obligation to at least attempt before entering.
ORDER
Based upon the above findings, and for good cause
shown, the Court HEREBY ORDERS:
The Motion to Suppress filed by defendants is
GRANTED. All evidence gathered or seized subsequent to
the officers’ entry into the house, including but not limited
to physical evidence, photographs taken, observations
made by the officers, and statements and actions made by
App. 48
the suspects, are HEREBY SUPPRESSED, and not
admissible in any further proceeding against the defen-
dants.
DATED, this the 18 day of May, 2001.
BY THE COURT:
/s/
District Court Judge
App. 49
FILED
UTAH APPELLATE COURTS
JUL 18 2005
IN THE UTAH SUPREME COURT
— — 00000 —- -
Brigham City,
Petitioner,
v. Case No. 20021004-SC
Charles W. Stuart, Shayne R.
Taylor, and Sandra A. Taylor,
Respondents.
ORDER
This matter is before the court upon appellant’s
petition for rehearing, filed on March 18, 2005. By request
of the court, the appellees’ response to the petition for
rehearing was filed on June 6, 2005.
IT IS HEREBY ORDERED that pursuant to Rule 35
of the Utah Rules of Appellate Procedure the petition for
rehearing is denied.
For The Court:
July 18, 2005 /s/
Date Christine M. Durham
Chief Justice
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