Police response to anonymous emergency calls. (Legal Digest).

Police officers in the United States respond to numerous and diverse calls for service on a daily basis, often using the nationally recognized "911" emergency number. One court has noted that "[a] 911 call is one of the most common--and universally recognized--means through which police and other emergency personnel learn that there is someone in a dangerous situation who urgently needs help." (1) In many such cases, callers identify themselves and are available to provide additional information to responding officers. Not only does this information assist the police in assessing the situation and developing the safest and most effective tactical approach, but an identified caller also helps establish the lawful basis for police action.

Anonymous callers, on the other hand, are not available to provide critical additional information. Thus, determining the proper police response to anonymous emergency calls is more difficult. Furthermore, warrantless, nonconsensual entries into private premises by police officers in response to anonymous calls or reports of an emergency are particularly fraught with legal issues. (2)

Some anonymous calls may be placed maliciously and convey false information for the purpose of harassing, annoying, or retaliating against another. However, the courts have acknowledged that there may be understandable and legitimate reasons for anonymous 911 calls: such calls are distinctive in that they concern contemporaneous emergency events, not general criminal behavior. Additionally, the exigencies of the emergency situations often limit the ability of the caller to convey extraneous details, such as identifying information. Furthermore, some callers, particularly neighbors, may be understandably reticent to give identifying information for fear of retaliation. (3)

THE EMERGENCY EXCEPTION

Many 911 calls result in police officers entering a person's home. A person's home enjoys the highest levels of protection from government intrusion under the Fourth Amendment to the U.S. Constitution. (4) The U.S. Supreme Court has emphasized that "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." (5) Thus, the general rule is that "searches and seizures inside a home without a warrant are presumptively unreasonable." (6) Nonetheless, the Supreme Court has established a few narrowly crafted exceptions to the warrant requirement. These exceptions allow the police to act when "the public interest require[s] some flexibility in the application of the general rule that a valid warrant is a prerequisite for a search." (7)

Under one such exception, officers may conduct a warrantless, nonconsensual entry and search of a residence when, due to exigent circumstances, there is insufficient time to obtain a search warrant. The Supreme Court has recognized the following emergency exceptions to the search warrant requirement: 1) prevent escape; (8) 2) prevent harm to the officers or others; (9) 3) prevent the destruction of evidence; (10) 4) hot pursuit of a criminal suspect; (11) and 5) to render immediate aid to a person in need of assistance. (12) This article focuses on police actions to render immediate aid to a person in need of assistance because many 911 calls to the police involve such emergencies.

The Supreme Court has noted that "[n]umerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid." (13) Thus, a "warrantless entry by criminal enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant." (14) In such situations, the police are acting to assist persons in distress, rather than seeking to make an arrest or seize evidence. (15)

JUSTIFYING THE EMERGENCY

To make a lawful warrantless, nonconsensual entry and search to render aid, the police must "reasonably believe" that an emergency situation exists requiring immediate police intervention. (16) Most courts have interpreted this to mean officers must have probable cause. (17) A federal appellate court has explained that "[p]robable cause for a forced entry in response to exigent circumstances requires finding a probability that a person is in 'danger.'" (18) One commentator has summarized the prevailing test used by many courts to review emergency warrantless, nonconsensual entries and searches as 1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; 2) the search must not be motivated primarily by intent to arrest and seize evidence; and 3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. (19)

The language used by the courts to describe the amount of knowledge officers must have to justify an emergency entry and search often is confusing. In the test summarized above, the commentator used the phrases, "reasonable grounds to believe" and "reasonable basis approximating probable cause." One federal appellate court has explained that to justify an emergency entry "requires finding a probability that a person is in 'danger.'" (20) It often is difficult to determine if courts are talking about reasonable suspicion, probable cause, or something in between, as the proper test.

Two conclusions can be drawn. First, courts likely will be flexible when they assess officers' actions in response to emergencies. They recognize that officers must act quickly, often upon ambiguous, incomplete information. (21) Courts understand that "police officers must be given authority and flexibility to act quickly, based on limited information, when human life is at stake." (22)

Second, regardless of the standard courts use to assess police response to emergencies, no warrantless, nonconsensual, emergency entry will be approved unless officers can cite specific facts, combined with their training and experience, that led them to reasonably conclude that an emergency existed justifying their entry. Unsupported and unexplained claims of emergencies will not suffice. (23) Information acquired after the emergency entry cannot be used to justify the initial entry. (24) Conversely, even if officers turn out to be wrong and no emergency actually existed, it will not make their entry unlawful so long as they acted reasonably in light of the information they possessed when the entry was made. (25) Meeting this burden is especially difficult, but not impossible, when the information comes available to officers from an anonymous source. (26)

The scope of the emergency search "must be 'strictly circumscribed by the exigencies which justify its initiation.'" (27) For example, if the emergency involves an entry to search for and aid injured persons, a search of desk drawers is unreasonable and risks not only suppression of any evidence found but also a possible civil suit for violation of the Fourth Amendment. (28) Of course, during any lawful emergency search, officers may seize without a warrant items in plain view that they have probable cause to believe are evidence or contraband. (29)

NEED FOR CORROBORATION

Several courts reviewing the police response to anonymous calls have held that the police actions were unlawful. In most of these cases, the court's decision was predicated on a finding that the police lacked probable cause or reasonable grounds to believe that their entry or subsequent search was necessary to respond to an emergency situation. A common thread in these cases is that the police, at least in the opinion of the reviewing court, failed to take adequate steps to corroborate the reliability of an anonymous tip before acting. (30) For example, in Kerman v. City of New York, (31) police received an anonymous 911 call that "a mentally ill man [at a specified location] was off his medication and acting crazy and possibly had a gun." The federal court held that "[b]ased on the absence of evidence in the record to corroborate the 911 call and the protections afforded to private dwellings under the Fourth Amendment...the officers' warrantless entry into Ethel apartment violated the Fourth Amendment." (32)

In another case, Alexander v. Commonwealth, (33) officers responded to an anonymous 911 call from a motel about a woman being held against her will in a specified room. Several police officers went directly to the room and knocked on the door. The door was opened, and police observed four persons inside the room, including one woman. With guns drawn, the police immediately entered the room. Police seized a handgun and cocaine from one occupant's pocket. The court held that the officers lacked probable cause, and the gun and cocaine were suppressed. (34) The court noted that "[u]pon arriving, the officers did not inquire at the front desk or make an independent investigation in an effort to verify the unsubstantiated report that a crime might be occurring." (35) Similarly, in North Dakota v. DeCoteau, (36) the police were dispatched to an anonymous call of a domestic disturbance. Upon arrival, some children outside told the police that they had heard glass breaking. The officers observed a broken window, but t ook no steps to determine if the break was recent and immediately entered the house without consent. Under these facts, the court found that there was "no emergency requiring swift action to prevent imminent danger to life or property."(37)

The courts will examine exactly what information is conveyed by an anonymous call in determining whether the police had reasonable grounds to believe that there was an emergency requiring immediate action. For example, in Feathers v. Aey,(38) officers received an anonymous call that a man on a porch yelled an obscenity at a passerby, appeared drunk, and pointed something unknown at the caller. Officers responded and immediately detained a man on his front porch and patted him down for weapons. The man later sued the officers. The court held that the stop was improper, noting that the officers detained the man "solely on a tip from an anonymous source... [and] the tip itself [gave] no clear indication of criminal activity."(39)

In United States v. Fisher,(40) an anonymous caller reported a woman named "Cathy" had been abducted and was being forced into room seven at a specified motel. The caller promised to wait in front of the motel for police. Police officers responded to the motel; the caller was not present as promised. The officers knocked on the door of room seven. The door was opened, and the officers immediately handcuffed the two male occupants. From the doorway, the officers could observe the entire motel room except the bathroom. From this vantage point, they did not see any woman, firearms, or other evidence of unusual activity, nor did they hear any unusual noises. Without seeking consent, knocking, or making an announcement, one officer, with his weapon drawn, went directly to the bathroom and opened the door. The officer found the defendant sitting on the toilet with his pants down. The officer handcuffed the defendant and escorted him out of the bathroom. The officer then reentered the bathroom and looked in the trash can, finding a firearm.

The court held that the police entry and search in this case violated the Fourth Amendment. The court gave several reasons for this holding. First, the court noted that the anonymous caller's dispassionate tone of voice was reason for some doubt. Second, although the caller promised to wait for police outside the motel, he did not do so. Third, the officers heard no screaming or unusual noises, and discovered nothing outside the motel that would suggest any criminal conduct. Fourth, the officers did not see a woman when the room door was opened. Finally, even if the tip had been credible and justified a preliminary search of the hotel room and bathroom, the officers exceeded the permissible scope of the search by looking into the trash can. Once the bathroom door was opened, it was evident there was no woman in the room, and reentering the bathroom to search the trash can was more intrusive than necessary to resolve the supposed danger.'"

SUCCESSFUL CORROBORATION

Cases upholding police entries and searches in response to anonymous calls typically rely upon one or more factors that corroborate the anonymous report sufficiently to justify police actions. These factors include police observations or conditions found upon arrival at the scene; prior knowledge of the persons, location, or area involved; and steps taken by police to investigate the circumstances before making an entry.

Personal Observations

In United States v. Holloway,42 the police received two anonymous 911 reports of gunshots and arguing at a specified location. After arrival at the motor home specified in the anonymous calls, the police encountered three adults, one of whom was unresponsive to the officers' commands. After securing the persons present outside the mobile home, a police officer stepped onto the porch and observed and seized a shotgun and then continued to search the house for possible shooting victims. The court held that "[u]nder the circumstances known to them at that time, the officers reasonably believed an emergency situation justified a warrantless search of appellant's home for victims of gunfire."(43) The court reasoned that "when an emergency is reported by an anonymous caller, the need for immediate action may outweigh the need to verify the reliability of the caller."(44)

If officers hear sounds of violence or fighting at the scene of an anonymous report of a disturbance, most courts will find probable cause or reasonable grounds to believe that exigent circumstances exist. For example, in Ohio v. Applegate, (45) officers were dispatched to an anonymous call reporting domestic violence. Upon arrival, they heard yelling, arguing, and bumping noises, as if furniture was being turned over, from inside the reported address. They entered the residence through a partially open doorway and confronted the defendant holding a whiskey bottle. He refused police commands to put down the bottle, and he was arrested after a scuffle with the officer. While being booked at police headquarters, cocaine was found in the defendant's pocket. The court upheld the police entry in this case, stating that based upon the call to the police and the sounds indicating violent activity was taking place, "[t]he movements of the officers were conservative, prudent, and reasonable."(46) On the other hand, th e absence of noises or disturbance at the scene of an anonymous call of domestic violence will not necessarily dictate that the police lack reasonable grounds to enter if other factors establishing exigent circumstances exist.(47)

In addition to noises at the scene, visual observations can help corroborate an anonymous call and establish the requisite basis for police action. In Colorado v. Thompson, (48) officers received an anonymous call of a "domestic dispute, a man beating a woman. Upon arrival, the officer observed gun shell casings on the driveway and blood on the front door. The door was ajar, and the glass in the front door was shattered around the door knob. The officer knocked on the door and a woman appeared, whose face and clothing were covered with blood and who was holding an ice pack to her head. The woman stated that the man was gone and everything was alright. Officers entered and searched the upstairs area, locating a rifle and a handgun in different closets. Over the woman's protest, the officers then searched the downstairs area for more victims. No additional victims were found, but police located several large marijuana plants in the downstairs area. Later, police obtained a search warrant and retrieved more evidence from the house.(49) The court held that the police acted properly, concluding that "the evidence establishe[d] the existence of an emergency justifying the warrantless entry and limited search of [the] residence."(50) The court noted that upon entry the officers did no more "than conduct a quite limited search of the premises to ascertain whether additional injured persons were present."(51) Significantly, given their other observations at the scene, the police were not bound by the woman's statements that there was no further problem, and it was permissible to search the location for additional victims over the woman's protest.

Conduct of Persons at the Scene

The conduct of persons at the scene also can corroborate an anonymous call. For example, in United States v. Arcobasso, (52) police were dispatched to a call of "shots fired within a residence." Upon arrival, they heard the clicking sounds of a gun being "dry-fired" from within the residence. While on the stairs leading to the front porch, officers saw the defendant through an open window sitting on a chair dryfiring a gun. The officers ordered the defendant to exit the house, and he climbed out the open window. Believing that there may have been a shooting victim in the house, the officers entered the house and did a protective sweep, during which they located a shotgun in plain view.(53) The court held that the search of the house was lawful and the items seized admissible because, under these circumstances, "there may have been a shooting victim or another armed person inside.. .exigent circumstances existed to justify the warrantless search." (54)

In People v. German, (55) police responded to an anonymous call reporting that a man had been shot in the defendant's apartment. Upon arrival, they observed the defendant wearing a gun holster. The officers found narcotics in the course of securing the defendant. On a second occasion, police responded to a different anonymous call that a rape was in progress in the same defendant's apartment. As officers arrived, the defendant ran back inside his apartment. Once again, the officers found narcotics in the course of restraining the defendant. The court held that the warrantless entries by police on both occasions were proper. (56) The court acknowledged that anonymous phone reports might not be sufficient in themselves to justify a warrantless entry. However, the observation of the holster on the first occasion, and the conduct of the defendant in running from police on the second, combined with the anonymous call to establish exigent circumstances. Similarly, a state appellate court held "that the officers who responded to the initial anonymous 911 report of a burglary in progress and attempted to pursue the defendant as he ran over the rooftop of the location of the burglary had probable cause to arrest the defendant...."(57) In another case, the fact that the defendant "was sweating profusely and appeared to be agitated" contributed to the corroboration of an anonymous report that someone had been shot. (58)

Prior Knowledge

In some cases, police knowledge concerning ongoing criminal activity at a given location may help corroborate an anonymous call. In People v. Love, (59) officers responded to an anonymous call of a man with a gun in a specified room at a named hotel. Upon arrival, officers knocked on the door, and it was opened about 15 inches by a woman inside the room. Upon seeing the officers, the woman tried to slam the door shut. The officers pushed the door open and entered the room, observing an automatic handgun, drugs, and drug paraphernalia in plain view. (60) In upholding the officers' actions in this case, the court cited "[t]he nature and specificity of the police radio transmissions, their close temporal proximity, the reputation of the hotel as a locale for drug and prostitution activity, and the hostile reception by [the] woman in the room when the police knocked on the door...."(61)

Also, prior knowledge regarding the subject of an anonymous call may contribute to the reasonableness of a warrantless entry. For example, in one case, police received an anonymous call that someone had taken an overdose of drugs. The responding officer's prior knowledge that the subject was a heroin user, and his personal observation of needle marks on her arms within the past 3 weeks, helped corroborate the anonymous call and establish the reasonableness of the warrantless entry to check her welfare. (62)

In United States v. Wiggins, (63) the police received an anonymous call made from a telephone booth that "an individual had been shot in the hand, had run into [a specified building], and that someone was trying to bandage the victim hand." In holding that the subsequent warrantless entry by police into an apartment in response to the call was proper, the court cited the following factors: 1) the area in which the building was located was a "high-crime area"; 2) there were two apartments in the building and police were able to determine that one was vacant and so turned their attention to the other; 3) the anonymous call was made from a phone booth located in close proximity (about two-tenths of a mile) to the building; 4) the officers found a video surveillance camera outside the door of the apartment, a fact they associated with drug trafficking, which, in turn, is associated with a high prevalence of weapons; 5) the call itself reported a shooting; and 6) when the defendant answered the door in response to the officers' knock, he was sweating profusely and appeared to be agitated.64 This case illustrates how a series of factors can sufficiently corroborate an anonymous report, even though each factor standing alone likely would not justify a warrantless entry or search.

Type of Victim

Courts may consider the vulnerability of a potential victim in assessing an anonymous report. In Wisconsin v. Boggess, (65) this factor, among others, was used to justify a warrantless entry to check the welfare of children who were the subject of an anonymous report concerning their physical abuse. Among the factors cited by the court in finding the warrantless, nonconsensual entry into the house by a police officer and social worker to be reasonable was that the call "involved small children inside a home, who are less able to protect themselves from further harm or to independently seek medical attention than are adults." (66)

Delay to Investigate

Courts typically analyze exigent circumstances in terms of a need for "immediate" action. Nonetheless, a reasonable delay to investigate, obtain further information, and corroborate an anonymous call will not defeat an otherwise valid assertion of the emergency exception. For example, in one case, the defendant made three anonymous calls to a confidential police "helpline" stating that "he had shot and believed he had killed his wife 4 days earlier; that his wife's body was in an upstairs bedroom near a bathroom; and that he had his four children, at home with him, who ranged in age from a 12-year-old male to a 2-year-old female." (67)

The caller arranged to meet police but failed to appear as agreed. Thereafter, detectives sought to identify and locate the caller by checking for school absences of siblings close in age to those identified by the caller. This investigation identified three families that might be involved, including the defendant's family. After checking the other two residences, police arrived at the defendant's house nearly 4 hours after the first call was received. At the scene, neighbors informed police that the children had been seen playing in the yard; this further aroused the officers' suspicions because the children's father had informed the school that the children were on a vacation. The officers checked the exterior of the house and found a broken windowpane next to a doorknob, which raised a suspicion that a burglary may have occurred. There was a further brief delay while officers at the scene decided what to do. Eventually, officers entered the house and located the defendant and his children, the body of the defendant's murdered wife, and other evidence. The court held that entry and search was lawful and all evidence was admissible. (68) The delay of several hours to identify the possible location involved in the anonymous call did not preclude a finding that the police reasonably believed an emergency existed. Similarly, a delay by police to wait for backup officers before entering a potentially dangerous location was permissible as a "reasonable precautionary measure." (69) Finally, police are not required to accept a layperson's determination that someone already is dead. (70)

CONCLUSION

Officers should not hesitate to act reasonably to preserve life and protect others in potentially dangerous situations. Accordingly, officers can follow certain guidelines to help support the legal justification for such actions taken in response to anonymous calls.

* Take reasonable steps to identify the caller before making the entry if circumstances permit. Of course, if the circumstances indicate an immediate need to act (e.g., screams for help, sounds of a struggle, shots being fired), this may not be practicable.

* Where safe and feasible, take reasonable steps to investigate and corroborate the anonymous call before acting. This may include speaking to neighbors and other persons in the vicinity.

* Where safe and feasible, attempt to obtain a valid consent to enter and conduct the necessary search. This will provide an independent basis to establish the legality of police action.

* Accurately document the information given by the anonymous caller. If there is a voice-recording system, a recording of the call should be preserved for evidentiary purposes in cases resulting in an arrest or investigation or which may result in a citizen complaint or civil litigation. Also, recordings of the information provided to officers by the dispatchers, and radio communications among the responding officers, also should be preserved. In some cases, discrepancies between the information provided by the caller and what was dispatched to the officers have become an issue. Also, the specificity and detail in an anonymous call may become an important issue in justifying the police response. Finally, any information from the anonymous caller that accurately predicted future conditions or events should be carefully documented because accurate predictive information from an anonymous source can help establish the anonymous caller's reliability and help justify police actions.(71)

* Consider the past history of the location named in the anonymous call and any persons involved. This includes objective knowledge of the telephone operator, dispatcher, or officers. For example, a history of domestic disturbances at a given location will help corroborate an anonymous call of a domestic disturbance in progress. Many newer computer-aided dispatching systems make location, police response, and personal histories immediately available to dispatchers and officers.

* Carefully and accurately document conditions found at the scene that may corroborate the anonymous call, especially in cases resulting in a significant arrest or investigation. Examples include broken windows, signs of forced entry, blood, bullets, and signs of a struggle. Documentation should include both written substantiation in reports and photographs or video as appropriate.

* Be prepared to testify fully and accurately about the circumstances justifying response to anonymous calls. It is important that the prosecutor ensure a complete record with all justifying factors is made at the trial court level to increase the likelihood of success on appeal.

* Persons receiving emergency calls for the police department, whether sworn or civilian, should be well trained for this critical function. This includes techniques in securing the cooperation of the caller, obtaining critical information, and conveying necessary information to the officers in the field.

Given the large number of anonymous emergency calls received by the police, it is critical that law enforcement be prepared to respond to them effectively and lawfully. Indeed, one federal appellate court has noted that "[i]f law enforcement could not rely on information conveyed by anonymous 911 callers, their ability to respond effectively to emergency situations would be severely curtailed." (72)

Endnotes

(1.) United States v. Richardson, 208 F.3d 626, 630 (7th Cir.), cert. denied, 531 U.S. 910 (2000).

(2.) This article will focus on warrantless, nonconsensual entries in response to anonymous reports of an emergency. As in other warrantless search situations, a valid consent will authorize the police to enter and search a private premises in response to an anonymous report of an emergency. See, e.g., United States v. Branch, No. 01 CR.264(LMM), 2001 WL 1154789 at *1 (S.D,N.Y. Oct. 1,2001) (occupant of house consented to police entry in response to anonymous call); cf Johnson v. Florida, 386 5o.2d 302, 303-04 (1980) (By anonymously calling the police to his own apartment and reporting a dead body was in the bedroom closet, the defendant "initiated the police action and impliedly consented to their entry upon his property.").

(3.) United States v. Holloway, 290 F.3d 1331, 1339 (11th Cir.), rehearing and rehearing en banc denied, cert. denied, ___ U.S. ___, 2003 WL 138487 (U.S. Jan. 21, 2003).

(4.) The Fourth Amendment states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, hut upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

(5.) United States v. United States District Court, 407 U.s. 297, 313 (1972).

(6.) Payton v. New York, 445 U.S. 573, 586 (1980).

(7.) Arkansas v. Sanders, 442 U.S. 753, 759 (1979).

(8.) Minnesota v. Olsen, 495 U.S. 91 (1990).

(9.) Warden v. Hayden, 387 U.S. 294, 298-99 (1967).

(10.) United States v. Santana, 427 U.S. 38 (1976).

(11.) Id.

(12.) Supra note 8; Thompson v. Louisiana, 469 U.S. 17 (1984); Mincey v. Arizona, 437 U.S. 385, 392-93 (1978).

(13.) Mincey, 437 at 392 (footnotes omitted).

(14.) Michigan v. Tyler, 436 U.S. 499, 509 (1978); see also Anthony v. City of New York, No. 00 CIV.4688(DLC), 2002 WL 731719 at *5 (S.D.N.Y. Apr. 25, 2002) ("[T]he substance of the call--a plea from a terrified woman who claimed to be under attack--created exigent circumstances, justifying and, indeed, requiring, an immediate response."); State v. Applegate, 626 N.E.2d 942 (Ohio 1994) (exigent circumstances justify a warrantless entry into a residence pursuant to an emergency call reporting domestic violence).

(15.) As explained by the U.S. Supreme Court, this is "what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cody v. Dombrowski, 413 U.S. 433, 441 (1973). For an interesting application of the "community caretaking" doctrine see People v. McKiernan, No. F037120, 2002 WL 1365550 at *6 (Cal.App. 5 Dist. June 24, 2002) (unpublished) ("The storage of human remains in a private residence both offends the dignity of the deceased and places the public health at risk.... Accordingly, investigation and removal of unlawfully disposed human remains is an important community caretaking function exercised by law enforcement officers which, in and of itself, justifies the warrantless entry.").

(16.) See Mincey, 437 U.S. at 392; see also supra note 8; New York v. Harris, 495 U.S. 14 (1990); Steagald v. United States, 451 U.S. 204 (1981).

(17.) See. e.g.. Holloway, 290 F.3d at 1337; Kerman v. City of New York, 261 F.3d 229, 236 (2d Cir. 2001); Tierney v. Davidson, 133 F.3d 189, 196-97 (2d Cir. 1998); United States v. Johnson, 9 F.3d 506, 509 (6th Cir. 1993), cert. denied, 512 U.S. 1212 (1994); United States v. Wiggins, 192 F. Supp. 2d 493, 498-501 (E.D. Va. 2002); United States v. Fisher, 145 F. Supp. 2d 853, 858 (E.D. Mich. 2001); Commonwealth v. Richter, 791 A.2d 1181, 1185 (Pa. Super. 2002); State v. DeCoteau, 592 N.W.2d 579, 582 (N.D. 1999); People v. Mitchell, 347 N.E.2d 607, 609 (N.Y.), cert. denied, 426 U.S. 953 (1976).

(18.) Kerman v. City of New York. 261 F.3d at 236 (citing Tierney v. Davidson, 133 F.3d at 196-97). Probable cause to believe an emergency exists provides an independent basis to make an entry; police officers are "not required to have both probable cause to obtain a search or arrest warrant and knowledge of exigent circumstances." People v. McKiearnan, 2002 WL 1365550 at *4 (italics added).

(19.) 3 Wayne R. LaFave, Search and Seizure-A Treatise on the Fourth Amendment (LaFave), [section] 6.6(a) at 392-93 (footnotes and citations omitted). This test sometimes is referred to as the "Mitchell test," as it was first articulated in Mitchell, 347 N.E.2d at 609. This commentator also has noted that the continued vitality of the "primary motive" requirement is "unclear." LaFave, section] 6.6(a) at 393 n.16 (3d ed. 1996); see also United States v. Whren, 517 U.S. 806 (1996); Scott v. United States, 436 U.S. 128 (1978). Even when the "primary motive" test is applied, response to the emergency need not be the sole police motive. Officers responding to the emergency need not "be totally unconcerned with the collection of evidence or the capture of criminals." LaFave, [section] 6.6(a) at 393 n.15 (quoting People v. Duncan, 42 Cal.3d 91 (1986)) (italics in original); accord People v. Snead, 1 Cal. App. 380 (1991).

(20.) Supra note 18.

(21.) Holloway, 290 F.3d at 1339; Kerman, 261 F.3d at 235 (citing Graham v. Connor, 490 U.S. 386, 397 (1989)); see also, LaFave, [section] 6.6(a) at 391.

(22.) Id. at 1339-40 (citing Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963)).

(23.) See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 750 (1984); Holloway, 290 F.3d at 1337; Mitchell, 347 N.E.2d at 609-10.

(24.) LaFave, [section] 6.6(a) at 391 (quoting State v. Sanders, 8 Wash. App. 306, 506 P.2d 892 (1973)); cf Florida v. J.L., 529 U.S. at 271 (The fact that the subject actually had a gun does not provide a reasonable basis for a stop and frisk based on an anonymous call because "[t]he reasonableness of official suspicion must be measured by what the officers knew before they conducted their search.").

(25.) Holloway, 290 F.3d at 1340 (quoting Wayne, 318 F.2d at 212 ("When policemen, firemen, or other public officers are confronted with evidence which would lead a prudent and reasonable official to see a need to act to protect life or property, they are authorized to act on that information, even if ultimately found erroneous.")).

(26.) The U.S. Supreme Court has had several occasions to analyze the reliability of anonymous tips, calls, or reports in other contexts. See, e.g., Florida v. J.L., 529 U.S. 266 (2000) (using anonymous information to establish reasonable suspicion for a "Terry stop"); Alabama v. White, 496 U.S. 325 (1990) (same); Illinois v. Gates, 462 U.S. 213 (1983) (using anonymous information to establish probable cause for a search warrant). However, the Court has not yet directly addressed the issue of police entry and search of a residence in response to an anonymous call reporting an emergency situation. See, e.g., J.L., 529 U.S. at 274-75 ("The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search without a showing of reliability.").

(27.) Mincey, 437 U.S. at 392-93 (quoting Terry v. Ohio, 392 U.S. 1, 25-26 (1968)).

(28.) United States v. Murphy, 241 F.3d 447, 457 (6th Cir.), cert. denied, 532 U.S. 1044 (2001); Tierney, 133 F.3d 189; Kerman, 261 F.3d 229; Anthony, 2002 WL 731719; Feathers v. Aey, 196 F. Supp. 2d 530 (N.D. Ohio 2002); People v. Thompson, 770 P.2d 1282, 1285 (Colo.) (1989) (en banc).

(29.) Mincey, 437 U.S. at 393; see also Horton v. California, 496 U.S. 128, 133-34 (1990); Illinois v. Andreas, 463 U.S. 765, 771 (1983); Michigan v. Tyler, 436 U.S. 499, 509-10 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 465-66 (1971); Harris v. United States, 390 U.S. 234 (1968).

(30.) In some cases, the initial call was placed anonymously, but the caller was present at the scene or identified prior to police action. See, e.g., Imperiale v. Pierce County, 37 F.3d 1505 (9th Cir. 1994) (unpublished); Ohio v. Beckman, Nos. CA2001-08-185, CA2001-08-186, 2002 WL 445079 (Ohio App. 12 Dist. Mar. 18, 2002) (unpublished), appeal not allowed, 96 Ohio St. 3d 1441 (2002). In such cases, although the initial call was anonymous, the police are in a position to make an assessment of the caller's veracity, reliability, and basis of knowledge and to obtain additional information. Furthermore, once identified, the caller is subject to prosecution for making a false report. See Feathers, 196 F. Supp. 2d at 538 ("...because any anonymous informant does not bear the responsibility of having to answer for misinformation, an anonymous tip must bear some evidence of reliability"). Thus, the concerns associated with anonymous reports are absent in most eases in which the caller is identified before police act ion. This article will focus on eases in which the caller was never identified, or at least not identified prior to the relevant police action.

(31.) 261 F.3d at 233. Although the police did not know this at the time, the caller was Kerman's girlfriend. Kerman had told her that he was drunk and intended to buy a gun and kill himself or his psychiatrist. The girlfriend knew that Kerman suffered from depression and that he recently had stopped taking his medication. She placed the anonymous 911 call after consulting with Kerman's psychiatrist, who recommended she notify the police.

(32.) Id.

(33.) 454 S.E.2d at 40.

(34.) Id. at 41.

(35.) Id.; cf., New Jersey v. Berlow, 284 N.J. Super. 356 (1995) (defendant not guilty of obstructing by refusing to admit officers responding to an uncorroborated anonymous tip that a woman had been shot and needed help).

(36.) 592 N.W. at 581-84.

(37.) Id. at 585.

(38.) 196 F. Supp. 2d 530.

(39.) Id. at 539.

(40.) 145 F. Supp. 2d at 855-57.

(41.) Id. at 859-61.

(42.) 290 F.3d at 1332.

(43.) Id. at 1338.

(44.) Id. at 1339 (italics in original).

(45.) Applegate, 626 N.E.2d at 942-43. Note: the opinion states that the caller was "subsequently identified as [the defendant's] wife." Id. at 943. It is not clear from the opinion at what point in the event she was so identified.

(46.) Id. at 944.

(47.) See, e.g., Richter, 791 A. 2D at 1185.

(48.) 770 P.2d at 1283.

(49.) Id. at 1283-85.

(50.) Id at 1286.

(51.) Id. at 1285.

(52.) 882 F.2d 1304, 1305 (8th Cir. 1989).

(53.) Id.

(54.) Id. at 1306-07.

(55.) 169 A.D.2d 427 (1st Dept. NY), appeal denied, 77 N.Y.2d 995 (1991).

(56.) Id at 427-28.

(57.) People v. McPherson, 750 N.Y.S.2d 862 (1st Dept. 2002).

(58.) Wiggins, 192 F. Supp. 2d at 500.

(59.) 204 A.D.2d 97 (1st Dept. NY), affid, 84 N.Y.2d 917 (1994).

(60.) Id. at 98.

(61.) Love, 84 N.Y.2d at 918.

(62.) People v. Gallegos, 13 Cal. App. 3d 239, 241-42 (1970).

(63.) Wiggins, 192 F. Supp. 2d at 496.

(64.) Id. at 500.

(65.) 340 N.W.2d 516 (1983).

(66.) Id at 524.

(67.) State v. Kraimer, 298 N.W.2d 568, 569 (1980), cert. denied, 451 U.S. 973 (1981).

(68.) Id. at 571-73.

(69.) Id. at 575.

(70.) Id. at 579; see also McKiernan, 2002 WL 1365550 at *5 (police were not required to accept anonymous caller's statement that the homicide was a week old, particularly in light of contradictory allegation that there still was blood on the suspect's hand); LaFave, [ss] 6.6(a) at 393 n.18 and cases cited therein.

(71.) Cf. J.L., 529 U.S. at 270-71; White, 496 U.S. at 327; Gates, 462 U.S. at 245-46.

(72.) Holloway, 290 F.3d at 1339.