Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, May 06, 2020

Evans: Emergency Aid Exception Applied Because Officers Could Mistake Dog Whimpering for a Distressed Person

In United States v. Evans, No. 17-15323 (May 6, 2020) (Grant, Rosenbaum, Hull), the Court affirmed the defendant’s conviction and sentence.

The Court upheld the denial of a motion to suppress based on the emergency-aid exception to the warrant requirement.  The main issue was whether it was reasonable for officers to believe that a dog whimpering inside the home could have been mistaken for a person in distress.   Under the totality of the circumstances, the Court concluded that they could, since the officers responded to a 911 call reporting gunshots , the responding officers were informed that the defendant had threatened to kill himself, and the defendant was not cooperative.   The officers were not required to believe the defendant’s girlfriend, who told her the whimpering was from a dog.

As for the sentence, the Court first rejected the argument that an unloaded firearm could not trigger the enhancement in 2K2.1 for possession of a semi-automatic firearm that is capable of accepting a large capacity magazine.  Second, although the defendant argued that there was no evidence he possessed a firearm with an obliterated serial number, the district court was entitled to rely at sentencing on an officer’s contrary testimony and the firearm itself.