Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:11-cr-16-JPS-1--J.P. Stadtmueller, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before MANION, WILLIAMS,andHAMILTON,Circuit Judges.
On December 29, 2010, a Mil- waukee police officer responding to a report of gunshots near the 1900 block of South 12th Street saw a Hispanic male running towards a building at 1830 South 13th
Street. A witness then told the officer that her cousin had been shot by a black male and that her cousin was hiding in an apartment in that building. After police officers approached the apartment and knocked, Defendant Luis G. Delgado, who was the Hispanic male seen earlier, and the shooting victim, who had a visible graze wound on his wrist, came out of the apartment. The officers detained Delgado in the squad car and then, without a warrant, entered and searched his apart- ment finding various firearms. Delgado was indicted for being a felon in possession of a firearm and for pos- sessing an unregistered firearm. Delgado moved to sup- press. Both the magistrate judge and the district court agreed that the warrantless search was not justified by exigent circumstances, but the district court found that the search was a valid protective sweep and denied Delgado's motion. Pursuant to the conditional plea agreement, Delgado pled guilty and was sentenced to a year and a day of imprisonment.
Delgado now appeals the denial of his suppression motion. The government concedes that the warrantless search was not a valid protective sweep, but argues that exigent circumstances existed because a reasonable officer could have believed that the unaccounted-for shooter was still hiding in the same apartment from which the shooting victim and Delgado had emerged. However, we agree with the magistrate judge and the district court and reject that argument. Absent any verbal or non-verbal indication from the victim, the witness, or Delgado that anyone else was in the apart- ment or that the victim or Delgado had been subjected to violence inside the apartment, the mere fact that the shooter was generally at large was not enough for a reasonable officer to believe that the shooter was specifically in the apartment. Therefore, we reverse the denial of Delgado's suppression motion, vacate the judgment of conviction, and remand with instructions to grant Delgado's suppression motion and for addi- tional proceedings consistent with this decision.
On December 29, 2010, Milwaukee police officers re- sponded to a report of gunshots in an alley near the 1900 block of South 12th Street. When they arrived, one officer noticed a Hispanic male (later identified as Delgado) running from the alley towards a building at 1830 South 13th Street clutching his left waistband. While following him, the officer was stopped by a witness who said that her cousin, Adrian Aviles, told her that a black male had shot him in the alley and that Aviles was hiding in Delgado's apartment at 1830A South 13th Street. The officers went to the apart- ment and knocked on the door. After getting no response, they prepared to force their way into the apart- ment when Aviles, who had a visible graze wound on his wrist, came out of the apartment with Delgado, who was unarmed. Neither Aviles nor Delgado indicated-- in words, demeanor, or otherwise--that the shooter was in the same apartment from which they exited. There was no indication that anyone else was in the apart- ment or that Aviles or Delgado had been subjected to violence inside the apartment. After recognizing Delgado as the Hispanic male spotted earlier, the officers handcuffed him and placed him in the back of a squad car.
The officers went back to the building, entered Delgado's apartment without a warrant, and searched it. Inside Delgado's bedroom closet, the officers found four antique rifles and two shotguns, including one sawed-off shotgun. During questioning, Delgado said he was the sole occupant of the apartment and had been previously convicted for armed robbery.
Delgado was charged with being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and for possessing an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871. Delgado moved to suppress the firearms, the parties stipulated to the facts, and no evidentiary hearing was held. The magistrate judge recommended granting the motion, finding that no exigent circumstances existed to justify the warrantless search, and that the search was not a valid protective sweep. The government objected to the recommendation but did not ask the district court for permission to supplement the record or for an evi- dentiary hearing. The district court, relying on the stipu- lated facts, agreed that no exigent circumstances existed, but denied the motion because it found that the search constituted a protective sweep. Delgado pled guilty pursuant to a conditional plea agreement which permitted him to challenge the denial of the suppres- sion motion on appeal. He was sentenced to one year and a day of imprisonment and has appealed the denial of his suppression motion.
Though the government argued before both the magis- trate judge and the district court that the warrantless search was justified as a protective sweep, it concedes on appeal that it was not. The government now argues exclusively that the search was justified by exigent cir- cumstances.
"Warrantless searches of areas entitled to Fourth Amend- ment protection are presumptively unreasonable, but the government may overcome this presumption by demonstrating that, from the perspective of the officer at the scene, a reasonable officer could believe that exigent circumstances existed and that there was no time to obtain a warrant." United States v. Schmidt, ___ F.3d ___, 2012 WL 5392623, at *2 (7th Cir. Nov. 6, 2012) (citation omitted). Exigent circumstances exist, for example, when officers must "'protect a [person] from imminent injury.'" Kentucky v. King, ___ U.S. ___, 131 S. Ct. 1849, 1856 (2011) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). "In reviewing the district court's denial of a motion to suppress, we review factual findings for clear error and issues of law de novo, and whether exigent ...