United States of America v. John D. Kempf

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2920
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J OHN D. K EMPF ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04-CR-031—John C. Shabaz, Judge.
____________
A RGUED J ANUARY 3, 2005—D ECIDED M ARCH 7, 2005
____________
Before B AUER , E ASTERBROOK , and W OOD , Circuit Judges.
B AUER , Circuit Judge. John Kempf was indicted by a
federal grand jury on one count of unlawful possession of a
sawed-off shotgun. After pleading not guilty, Kempf filed a
motion to suppress evidence that was seized from his room
at a boarding house. The motion was denied by the district
court. He then pleaded guilty to the indictment, reserving
his right to appeal the suppression issue. Since exigent
circumstances justified the initial warrantless entry into
Kempf’s room, we affirm.

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2 No. 04-2920
Background
On December 13, 2003, Kempf accidently shot himself
and sought treatment at a local hospital in Superior,
Wisconsin. At the hospital, Kempf told police that a gun
had fallen off the wall in his room, discharged when it hit
the ground, and he was struck in the leg. However, the
officer at the hospital noticed that the wound did not appear
to be consistent with this version of events, in that the
entry wound appeared to come from above rather than
below. Kempf also informed police that there was a teenage
boy in the house at the time he was shot. Kempf was either
unwilling or unable to provide further details about the
incident, including the name of the boy or the location of the
boarding house where the shooting occurred.
Sergeant John Nowicki, who helped question Kempf at
the hospital, attempted to locate the residence where the
shooting had occurred. Nowicki was concerned about the
safety of the teenage boy at the house and also the public at
large; he had no way of knowing whether the boy had any
role in the shooting or was possibly in danger himself. His
investigation determined that the residence in question was
1828 Banks Avenue. Nowicki proceeded to this address and
was met there by Officer George Gothner. The officers
knocked on both doors to the house and David Ennis, a
teenage boy, answered the back door and invited the officers
inside. Ennis explained that his mother, who owned the
house, was not home. He also explained that he had heard
a gunshot and a cry of pain earlier in the day, while he was
playing video games. Ennis stated that Kempf then came
into his room and asked for help in walking to his car. After
helping Kempf walk out to his car, Ennis resumed playing
video games. He did not call 911 or his mother in response
to the shooting. Nowicki observed that Ennis did not seem
at all concerned about the situation, was difficult to under-
stand, and had a flat affect. He initially suspected that
Ennis was under the influence of drugs, but later deter-
mined that this was just his normal demeanor.

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No. 04-2920 3
Sergeant Nowicki asked Ennis about the location of the
gun which had been involved in the incident. What tran-
spired next is a point of contention. According to the officers,
Ennis turned and began to climb up the stairs, despite the
fact that they had not asked him to retrieve the gun.
Nowicki testified that he warned Ennis several times and
told him to stop and wait. Ennis, however, continued up the
stairs. According to Ennis, he initially told the police that
the gun was in Kempf’s room, then went up the stairs to
show them. Ennis claims that he was never told by the
officers to stop going up the stairs or into the room. Re-
gardless, the officers followed Ennis up the stairs.
At the top of the stairs, concerned for his own safety,
Nowicki drew his weapon and again warned Ennis not to go
into the room. Nowicki noticed a room with a light on and
the door wide open. Ennis entered the room and motioned
vaguely toward a gun on the wall. Nowicki entered the
room, ordered Ennis out, and quickly surveyed the situation.
He immediately noticed several knives on the wall, a small
derringer gun lying on the floor, empty holsters for fire-
arms, and an open black duffel bag containing drugs.
Nowicki decided to freeze the scene, and he left to obtain a
search warrant for the room. While executing the search
warrant, police discovered a sawed-off shotgun in a dresser
drawer, which is the subject of the indictment in this case.
Discussion
The sole issue on appeal is whether the district court
erred in holding that exigent circumstances justified the
police’s warrantless entry into Kempf’s room and thereby
improperly admitted the evidence later found in the room.
The existence of exigent circumstances is a mixed question
of law and fact. We review the district court’s factual de-
terminations for clear error and review questions of law
de novo. United States v. Marshall, 157 F.3d 477, 480 (7th

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4 No. 04-2920
1 We note that the district court credited the testimony of the
police officers over Ennis on whether they instructed him to stop,
a finding which we do not disturb.
Cir. 1998). As the resolution of a motion to suppress is a
fact-intensive inquiry, the district court’s credibility deter-
minations are reviewed deferentially, given its opportunity
at the suppression hearing to hear the testimony and ob-
serve the demeanor of the witnesses. Id.; United States v.
Webb, 83 F.3d 913, 916 (7th Cir. 1996).
In general, police need a warrant to enter a home or room
but warrantless searches are permissible when police have
a reasonable belief that exigent circumstances require
immediate action and there is no time to obtain a warrant.
United States v. Jenkins, 329 F.3d 579, 581 (7th Cir. 2003).
An example of exigent circumstances is when police reason-
ably fear for their safety or the safety of someone inside the
premises. Id.; Webb, 83 F.3d at 916. In the instant case,
Kempf informed the officers that he had been shot acci-
dently, and that there was a teenage boy in the house
where the shooting occurred. The officers also had some
reason to believe, based upon Kempf’s wound, that the
shooting did not occur exactly as he had described. At the
time they entered the house and began talking with Ennis,
the officers established that Ennis did not appear to be in
any immediate danger, but they still did not know the exact
details of the shooting, where the gun was located, whether
the gun was loaded, who else may have been in the house,
or whether anyone in the house may have been involved in
the shooting. So when Ennis began climbing the stairs to
retrieve the gun, despite their repeated warnings, the police
had every reason in the world to fear for their safety and
the safety of others who may have been inside the house. 1
Following Ennis into the room was a reasonable response
under the circumstances. Once inside the room, with drugs
and weapons in plain view, Sergeant Nowicki correctly froze
the scene and sought a search warrant.

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No. 04-2920 5
Based on what Kempf told the officers at the hospital and
Ennis’ behavior at the house, a reasonable officer would have
feared for his own safety and the safety of those inside the
house; the exigent circumstances justified Sergeant Nowicki’s
entrance into Kempf’s room. The district court’s denial of
Kempf’s motion to suppress was correct. AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-7-05

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