Emergency aid exception is limited and does not cover property

Stephen J. Atherton won in State v. Neighbors, No. 105,588 (Kan. April 25, 2014), affirming Judge Fowler's suppression order in a Lyon County drug prosecution.  The primary issue before the KSC was the application of the emergency aid exception.  Officers had responded to a landlord's call about a nonresponsive person in one of his apartments.  Officers, also unable to get a response, entered the apartment.  Upon entry, the officers found Mr. Neighbors, who woke up and told officers that he had permission to be in the apartment from the tenant, who was in jail.  Officers confirmed that the tenant was in jail and that Mr. Neighbors had permission to be in the apartment.  Meanwhile, because the persons were recognized as drug offenders, drug investigators arrived and began an investigation.  The KSC held that this crossed the line of a permissible emergency aid exception to the Fourth Amendment.  Aligning itself with Brigham City v. Stuart, 547 U.S. 398, 403, 406-07 (2006), the KSC held that warrantless entry under the emergency aid doctrine does not cover property and must be limited and end when the emergency ends:

Accordingly, the emergency aid exception must be seen as a limited exception permitting a warrantless search when: (1) law enforcement officers enter the premises with an objectively reasonable basis to believe someone inside is seriously injured or imminently threatened with serious injury; and (2) the manner and scope of any ensuing search once inside the premises is reasonable. Our prior caselaw holding otherwise is overruled.

Using this test, the initial entry into the apartment was lawful.  But the continued detention and investigation was not:

In Neighbors' case, the only evidence arguably in plain view was the Q-Tip, and it is unclear from the record whether it was even confiscated. The only testimony at the suppression hearing was that Delgado observed it, but there was no testimony indicating it was tested for drugs. But even assuming Neighbors' motion to suppress included the Q-Tip, it is questionable whether the seizure could be upheld under the plain-view exception because its incriminating nature was not apparent without conducting some further search of it. More importantly, and as discussed next, Delgado was not lawfully present from the outset, so his discovery of the Q-Tip fell outside the justification for the initial entry.

The KSC also soundly rejected the COA's rationale that the criminal investigation itself constitutes an emergency:

One additional problem we note with the panel's analysis is that it seems to create an end run around the probable cause requirement by characterizing a criminal investigation itself as an emergency.  We reject that suggestion. We cannot find any previous Kansas case invoking the emergency aid exception for the protection of property. And as mentioned earlier, this expansion of the exception would be difficult to reconcile with Brigham City. 

We hold the emergency aid exception—as articulated in Brigham City—does not apply to the protection of property. We hold further that the potential medical emergency that justified the four officers' initial entry into the apartment abated prior to the time Delgado arrived.

This last holding may have some application in a Confrontation Clause analysis too.