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David Hanson v. Dane Co., Wis., 7th Cir. No. 09-1759, 6/15/10

7th circuit court of appeals decision

Warrantless Entry – Emergency Doctrine – 911 Call

According to David, the police violated the fourth amendment by entering without probable cause and refusing to leave as soon as Karen asked them to go. Like the district judge, we think that a 911 call provides probable cause for entry, if a call back goes unanswered. The 911 line is supposed to be used for emergencies only. A lack of an answer on the return of an incomplete emergency call implies that the caller is unable to pick up the phone—because of injury, illness (a heart attack, for example), or a threat of violence. See United States v. Jenkins, 329 F.3d 579, 581 (7th Cir. 2003); United States v. Richardson, 208 F.3d 626, 629–30 (7th Cir. 2000). Any of these three possibilities supplies both probable cause and an exigent circumstance that dispenses with the need for a warrant. See Brigham City v. Stuart, 547 U.S. 398 (2006). There are of course other possibilities. Perhaps a child dialed 911 by mistake, or perhaps the ringer had been set to silent so the phone did not alert anyone to the incoming call from the 911 dispatcher. But probable cause just means a good reason to act (the fourth amendment protects people against “unreasonable” searches and seizures); it does not mean certainty, or even more likely than not, that a crime has been committed or a medical emergency is ongoing. See Illinois v. Gates, 462 U.S. 213, 235 (1983).

Not binding on state courts obviously, but it’s nonetheless a result you probably want to know about. There’s at least one reported Wisconsin decision dealing with warrantless entry following 911 call, State v. David M. Larsen, 2007 WI App 147, ¶¶20-21, but there don’t appear to be any “hang-up” 911 cases. Hanson may be inconsistent with U.S. v. Cohen, 481 F.3d 896 (6th Cir 2007) (“the virtually complete lack of information conveyed by the silent 911 hang-up call and the total absence of corroborating evidence indicating that criminal activity was afoot requires us to give the 911 hang-up call little weight in evaluating the totality of the circumstances”), which was itself more recently ratified by United States v. Smith, 594 F.3d 530, 540 (6th Cir. 2010) (with the embellishment “that a silent 911 call can provide some support for a reasonable suspicion of  criminal activity but, by itself, cannot support a finding that the law enforcement officers had a reasonable suspicion of criminal activity,” albeit finding reasonable suspicion for a Terry stop on the particular facts. Keep in mind that reasonable suspicion doesn’t support warrantless entry, State v. Jeffrey Stout, 2002 WI App 41, ¶¶14-15.)

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