RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Nos. 02-5001/5002/5003 ELECTRONIC CITATION: 2003 FED App. 0317P (6th Cir.) Williams, et al. File Name: 03a0317p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: T. Clifton Harviel, Jr., HARVIEL LAW _________________ OFFICE, Memphis, Tennessee, Kim A. Tollison, FEDERAL DEFENDER SERVICES, Knoxville, Tennessee, Richard L. UNITED STATES OF AMERICA , X Gaines, ELDRIDGE, IRVINE & GAINES, Knoxville, Plaintiff-Appellee, - Tennessee, for Appellants. David P. Folmar, Jr., - ASSISTANT UNITED STATES ATTORNEY, Knoxville, - Nos. 02-5001/ Tennessee, for Appellee. ON BRIEF: T. Clifton Harviel, v. - 5002/5003 Jr., HARVIEL LAW OFFICE, Memphis, Tennessee, Kim A. > Tollison, FEDERAL DEFENDER SERVICES, Knoxville, , HUNTER LEE WILLIAMS - Tennessee, Richard L. Gaines, ELDRIDGE, IRVINE & (02-5001); NICHOLAS - GAINES, Knoxville, Tennessee, Charles W. B. Fels, EDWARD GEORGE (02-5002); - RITCHIE, FELS & DILLARD, Knoxville, Tennessee, for - Appellants. David P. Folmar, Jr., ASSISTANT UNITED and GEOFFREY HILLMAN STATES ATTORNEY, Knoxville, Tennessee, for Appellee. LEEK (02-5003), - Defendants-Appellants. - _________________ - N OPINION Appeal from the United States District Court _________________ for the Eastern District of Tennessee at Knoxville. No. 00-00045—James H. Jarvis, District Judge. R. GUY COLE, JR., Circuit Judge. Defendants appeal the district court’s denial of their motions to suppress the fruits of Argued: August 7, 2003 a warrantless entry and search by federal agents of a rental property in Knoxville, Tennessee. After the owner of the Decided and Filed: September 4, 2003 property became concerned about a water leak, she entered the residence and became suspicious of criminal activity. She Before: KEITH and COLE, Circuit Judges; WEBER, notified federal authorities, who then accompanied the District Judge.* woman into the rental property. This entry led to the discovery of a hydroponic marijuana-growing operation, searches of two other residences, and the arrests of Defendants. The district court denied Defendants’ suppression motions, finding that exigent circumstances–the * possible water leak–justified the warrantless entry. For the The Hono rable Herman J. Weber, United States District Judge for reasons stated below, we REVERSE the district court’s denial the Southern District of Ohio, sitting by designation.
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of Defendants’ motions and REMAND for further Around 10:30 a.m. on October 22, Smith and Barnett proceedings. arrived at the Bluegrass residence. Although the gate was open, Leek, George, and the dog were not at the residence. I. BACKGROUND Smith used a copy of the house key to enter the Bluegrass residence. As she and Barnett entered, Smith smelled The charges against Defendants Geoffrey Hillman Leek, something odd. Smith and Barnett saw leaves all over the Nicholas Edward George, and Hunter Lee Williams arise out floor, and no furniture in the residence save a punching bag of a warrantless entry by federal agents into a residence at and trash cans. Soft music was playing. The pair walked 10223 Bluegrass Road, Knoxville, Tennessee (the “Bluegrass through the living room and inspected the kitchen, finding no residence”) on October 22, 1999. The owner of this property, leaks. Although they saw no leaks nor any water or water Theresa Smith, leased the residence to Leek and George. damage, they left without checking the entire residence Smith, an elderly widow who owns seven rental properties in because it was dark, the lights did not work, and they were the Knoxville area, testified that she had no complaints about afraid. Leek or George, and that Leek always paid the rent, $850.00 per month, on time and in cash. Under the lease, Smith was After they left, Barnett called the Drug Enforcement responsible for the water bill. Agency (“DEA”). Barnett explained to DEA Agent Tim Teal that Smith had received a high water bill for several rental On October 7, 1999, Smith received a bill for the combined properties that she owned, including the Bluegrass residence. water usage at four of her rental properties—the Bluegrass She explained that she had accompanied her aunt to the residence, a modular home, a trailer, and a camper. On Bluegrass residence to look for leaks, and based on the plant October 22, 1999, when Smith prepared to pay the bill, she material and lack of light and furniture in the residence, they concluded that it was higher than normal. Specifically, Smith suspected drug activity. Barnett also informed Teal that Leek testified that the October 7 bill totaled $39.16, while the bill always paid the rent in cash. Based on this information, for the previous month totaled $27.86. Notably, the Agent Teal suspected that the residence was either a November 1999 bill totaled $46.41 and Smith testified that a “[m]arijuana grow or marijuana stash house, one or the bill of nearly forty dollars was not unusual. However, Smith other.” Agent Teal agreed to meet with the women at the claimed that a bill of nearly forty dollars was odd for the Bluegrass residence at 1:00 p.m. that day. period measured in the October 7 bill because two of the residences were vacant. Agent Teal asked DEA Agent David Henderson, who was also employed by the Knox County Sheriff’s Department, to Approximately five years earlier, a water leak in the kitchen accompany him. When they arrived at the Bluegrass caused damage to the Bluegrass residence. Thus, suspecting residence at 1:20 p.m., the women explained that Smith a possible water leak, Smith set out to inspect each of the four owned the Bluegrass residence, but rented it to Leek and properties. Smith did not call any of her tenants in advance. George. Reiterating some of the information that Barnett had Smith inspected the modular home, trailer, and camper, but relayed to Agent Teal on the telephone, Smith and Barnett found no leaks. Fearing a dog that Leek and George owned, showed the agents the lease, described the water bill, and Smith asked her niece, Lucille Barnett, to accompany her to explained that they had checked the three other rental inspect the Bluegrass residence. properties for a leak already. Nos. 02-5001/5002/5003 United States v. 5 6 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
Concerned that a possible water leak might ruin the new entry into the Bluegrass residence. Relying on this carpeting in the Bluegrass residence, Smith and Barnett information, Agent Henderson applied for and obtained a initially asked the officers to inspect the premises for a leak. search warrant for the Bluegrass residence the same day. The agents declined to enter the residence alone because they Meanwhile, Agent Teal learned that: Leek subscribed to “both agreed that [they] shouldn’t do that.” Smith then asked electrical service for the Bluegrass residence, listed 305 the agents to accompany her into the Bluegrass residence to Meridale Drive in Johnson City, Tennessee (the “Meridale check for a leak, telling them that she was afraid to go in by residence”) as his address on his driver’s licence, but had a herself. After discussing whether they could accompany vehicle registered at 1311 Clinch Avenue, Apartment Three Smith into the residence, the agents decided that Agent in Knoxville (the “Clinch residence”). Agent Teal also Henderson would go with Smith in his capacity as a local law learned that George’s driver’s license listed the Clinch enforcement officer, rather than as a federal drug residence as his address, but George had a vehicle registered investigator.1 Agent Teal testified, however, that he had no at the Meridale residence. Finally, Agent Teal learned that “real reason” to believe that anyone was in the residence. Leek and George receive mail at the Clinch residence. Smith unlocked the door to the residence, and Agent Agents Teal and Henderson executed the search warrant for Henderson accompanied her and Barnett inside. Barnett the Bluegrass residence at 10:30 p.m. on October 22, 1999. reemerged from the residence a few minutes later to get a The agents discovered a hydroponic marijuana-growing flashlight from Agent Teal for Agent Henderson. Agent operation, including 164 marijuana plants. On October 26, Henderson inspected the entire house, including the room 1999, after observing Leek’s vehicle parked outside, the containing a washer and dryer, the master bedroom, the officers knocked on the door of the Clinch residence to arrest bathrooms, and the kitchen—even looking under the kitchen him. Upon arrest, Leek consented to a search of the Clinch sink. Agent Henderson did not find a water leak, but he did residence. During the search, the agents recovered marijuana, discover many marijuana plants. drug paraphernalia, opium, and sixteen hundred dollars in cash. During the course of this arrest, Leek made various Based on Agent Henderson’s discovery of marijuana during incriminating statements to the agents. Based on the search the warrantless entry into the Bluegrass residence, the agents of the Clinch residence, the agents decided to focus on the established surveillance there. Later in the day, Agent Meridale residence. Thus, police officers from Johnson City, Henderson obtained state arrest warrants for Leek and Tennessee, acting on information provided by Agents Teal George. The affidavit for these warrants was based entirely and Henderson, eventually executed the arrest warrant for on information obtained from Agent Henderson’s warrantless George at the Meridale residence. The officers did not locate George in the residence, but they did see marijuana, and they arrested Hunter Williams, who was present there. The 1 officers later sought and obtained a search warrant for the Agent Henderson testified that the Sheriff’s Department guidelines permitted him to enter the residence with Smith, to “protect her.” As the Meridale residence. Upon executing that search warrant, the district court observed, “These guidelines were never introduced into the officers recovered 295 marijuana plants, approximately eighty record. W hether or no r the Sheriff’s Departm ent has ‘guidelines’ bundles of marijuana leaves, and implements used for allowing deputies to enter homes in certain circumstances has no legal significance on the constitutionality of the warrantless entry into th[e] growing marijuana, such as lights and a carbon dioxide [Bluegrass] residence.” enrichment system. Nos. 02-5001/5002/5003 United States v. 7 8 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
On March 8, 2000, Defendants Leek, George, and II. ANALYSIS Williams, were charged in a five-count indictment (“Indictment”) with conspiring to manufacture marijuana and As the district court concluded, if the warrantless entry into to possess with intent to distribute marijuana in violation of the Bluegrass residence was unconstitutional, all subsequent 21 U.S.C. §§ 841(a)(1) and 846, and aiding and abetting each evidence was obtained unlawfully because the subsequent other in the commission of these offenses. Subsequently, searches and arrest warrants were based on evidence and Defendants filed motions to suppress the evidence against information derived solely from Agent Henderson’s them on the grounds that the warrantless entry into the warrantless entry. Thus, our primary task is to assess whether Bluegrass residence was not justified. The Government the warrantless entry into the Bluegrass residence was opposed the motions. constitutional.
After a hearing, a magistrate judge issued a Report and A. Warrantless Entry into the Bluegrass Residence Recommendation, concluding that exigent circumstances justified the warrantless entry into the Bluegrass residence The district court held that the warrantless entry into the and recommending denial of Defendants’ motions. Upon Bluegrass Residence was justified by exigent circumstances. review, the district court explained: “The only issue presented Specifically, the district court found that Agent Henderson for review is whether Agent Henderson’s initial warrantless did not contravene the dictates of the Fourth Amendment entry into the Bluegrass Road residence was based on exigent when he accompanied, for her protection, “a very typical East circumstances under United States v. Rohrig, 98 F.3d 1506 Tennessee ‘country woman,’ who was insistent upon entering (6th Cir. 1996).” Agreeing with the magistrate judge that the her residence ‘come hell or high water,’” to look for a water search was permissible under Rohrig, the district court leak in the darkened residence. On appeal, Defendants claim adopted the findings of the magistrate judge and denied there was no exigency to justify the entry and, therefore, the Defendants’ motions to suppress. agents should have sought a warrant. When reviewing a district court’s decision to deny a motion to suppress, we In April 2001, Defendants George and Leek pled guilty to review the district court’s legal conclusions de novo and Count One of the Indictment, which alleged a conspiracy to disturb its factual findings only if they are clearly erroneous. manufacture, possess, and distribute one hundred or more United States v. Bates, 84 F.3d 790, 794 (6th Cir. 1996). marijuana plants, and Williams pled guilty to Count Five, which alleged aiding and abetting the possession with intent The Fourth Amendment provides that: “The right of the to distribute marijuana. On December 17, 2001, the district people to be secure in their persons, houses, papers, and court sentenced George and Leek each to serve eighteen effects, against unreasonable searches and seizures, shall not months of imprisonment to be followed by three years of be violated and no Warrants shall issue, but upon probable supervised release. The same day, the district court sentenced cause, supported by Oath or affirmation, and particularly Williams to serve fifteen months of imprisonment to be describing the place to be searched, and the persons or things followed by three years of supervised release. Defendants to be seized.” U.S. CONST . amend IV. The “chief evil” specifically reserved their rights to appeal the denial of their against which the Fourth Amendment protects is the “physical suppression motions and now appeal such denial. entry of the home.” Payton v. New York, 445 U.S. 573, 585 (1980). The Fourth Amendment requires that searches of the Nos. 02-5001/5002/5003 United States v. 9 10 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
home be reasonable. See Illinois v. Rodriguez, 497 U.S. 177, prevent a suspect’s escape; and (4) a risk of danger to the 185-86 (1990). This reasonableness requirement generally police or others.” United States v. Johnson, 22 F.3d 674, 680 requires police to obtain a warrant based upon a judicial (6th Cir. 1994) (internal citations omitted); see Minnesota v. determination of probable cause prior to entering a home. See Olsen, 495 U.S. 91, 100 (1990). Payton, 445 U.S. at 585-86. The Fourth Amendment prohibition against entering a home without a warrant applies Of these potential exigencies, we must determine whether equally whether the police enter a home to conduct a search the “risk of danger” exigency applies under the circumstances or seizure or for some other purpose. See Rohrig, 98 F.3d at of this case. As the Supreme Court has explained, “[T]he 1511-12. In the present case, because no warrant was Fourth Amendment does not bar police officers from making obtained before Agent Henderson entered the Bluegrass warrantless entries and searches when they reasonably believe residence with Smith and Barnett on October 22, 1999, the that a person within is in need of immediate aid.” Mincey, Government must overcome the presumption that the entry 437 U.S. at 392. The “‘risk of danger’ exigency” most was unreasonable. See Ewolski v. City of Brunswick, 287 frequently justifies “warrantless entries in cases where the F.3d 492, 501 (6th Cir. 2002) (citing O’Brien v. City of Grand Government is acting in something other than a traditional Rapids, 23 F.3d 990, 996 (6th Cir. 1994)). law enforcement capacity.” Rohrig, 98 F.3d at 1515; see, e.g., Michigan v. Tyler, 436 U.S. 499, 509 (1978) (holding There are a few well-defined and carefully circumscribed warrantless entry into a burning building justified); see also circumstances in which a warrant will not be required. See Johnson, 22 F.3d at 680 (holding limited warrantless entry to Mincey v. Arizona, 437 U.S. 385, 390 (1978) (discussing free a victim who had been held against her will and sexually exceptions to the warrant requirement); see also United States assaulted justified). v. Haddix, 239 F.3d 766, 767 n.2 (6th Cir. 2001) (same). As noted above, the district court found that the “exigent Because we find that Agent Henderson was neither faced circumstances” exception to the warrant requirement justified with any true immediacy, nor confronted by any real danger Agent Henderson’s entry into the Bluegrass residence. that serious consequences would certainly occur to the police or others if he did not enter the Bluegrass residence, we 1. Exigent Circumstances conclude that exigent circumstances, in particular, the “risk of danger” exigency cannot justify Agent Henderson’s Exigent circumstances are situations where “‘real warrantless entry. First, it is clear that time was not of the immediate and serious consequences’” will “certainly occur” essence in attending to the possible water leak at the if a police officer postpones action to obtain a warrant.” Bluegrass residence. In fact, the Government conceded at Ewolski, 287 F.3d at 501 (quoting O’Brien, 23 F.3d at 997 oral argument that there was no immediacy involved here. (quoting Welsh v. Wisconsin, 466 U.S. 740, 751 (1984))); see Specifically, the Government represented that the agents Thacker v. City of Columbus, 328 F.3d 244, 253 (6th Cir. could have pursued alternative courses of action, such as 2003). “The government bears the burden of proving [that] impounding the residence and seeking a warrant, rather than exigent circumstances existed.” Bates, 84 F.3d at 794. This entering the home without a warrant. We agree. Smith had Court has explained that the following situations may give waited two weeks after receiving the October 7 water bill rise to exigent circumstances: “(1) hot pursuit of a fleeing before opening it on October 22 and concluding that there felon; (2) imminent destruction of evidence; (3) the need to might be a leak. At that time, she suspected a leak and set out Nos. 02-5001/5002/5003 United States v. 11 12 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
to inspect for it. On October 22, the water could have been Agent Henderson was unable to prevent Smith from entering leaking for the four weeks covered by the bill, as well as the the residence. Insofar as Agent Henderson permitted Smith two weeks during which she did nothing after receiving the to enter the home, he essentially created the dangerous bill. Any damage would likely have been done, or at least situation himself. Law enforcement officers cannot noticeable, by October 22. However, Smith did not rush to manufacture exigent circumstances. Ewolski, 287 F.3d at 504 the Bluegrass residence after finding no leak in any of the (quoting United States v. Morgan, 743 F.2d 1158, 1163 (6th other three rental properties. Instead, she went to get Barnett Cir. 1984), for the proposition that “[p]olice officials . . . are before going into the residence. Although Smith and Barnett not free to create exigent circumstances to justify their did not check the entire residence when they entered at 10:30 warrantless intrusions.”). Accordingly, we find that any a.m., they did not see a leak or evidence of water damage. danger to human life or limb, that is, to Smith or to the agents themselves, was the result of their own doing and cannot, Instead of calling an emergency plumber or 911, Smith and therefore, justify the warrantless entry into the Bluegrass Barnett made an appointment to meet with Agents Henderson residence. and Teal concerning the possible water leak and their suspicion of drug activity. The officers stopped for lunch on Third, other than the danger created by the agents, there the way to the residence, and arrived late. In fact, Agent Teal was no “risk of danger” as that term is used in Fourth testified that he was not in a hurry to get to the residence. Amendment jurisprudence because the potential danger was Thus, Smith had willingly waited nearly three hours before merely the risk of damage to property and such risk was, at Agents Henderson and Teal arrived at 1:20 p.m. Even if a best, speculative. Danger of water damage to a carpet is water leak that could potentially cause damage to a new certainly not urgent within the meaning of the “risk of carpet could be considered an emergency, the additional time danger” exigency. Precedent is clear that the “risk of danger” it would have taken to obtain a search warrant was marginal exigency applies only to situations involving the “need to under the circumstances of this case. Significant time had protect or preserve life or avoid serious injury either of police already passed without any drastic consequences stemming officers themselves or of others.” O’Brien, 23 F.3d at 997 from the possible, but far from certain, leak in the Bluegrass (citing Mincey, 437 U.S. at 392); see Mincey, 437 U.S. at 392 residence. (explaining that a prompt warrantless entry into a home where a homicide just took place “to see if there are other victims or Second, any “risk of danger” to “the police or others” was if a killer is still on the premises” is permissible under the created by the agents when they permitted Smith to reenter Fourth Amendment, but that a four-day search of that home the Bluegrass residence. The officers testified that they was unreasonable because there was no “emergency entered the Bluegrass residence to protect Smith, who insisted threatening life or limb”). Our decision in Johnson offers on entering the residence. The agents did not believe anyone some clarity regarding the limits on the “risk of danger” inside the Bluegrass residence was in need of aid. Rather, the exigency. There, we explained that a limited warrantless agents were with Smith, who was safe outside the residence, entry by police officers responding to a call that a minor was but who insisted on going inside to search for a possible water being held in a closet in the apartment against her will was leak. Thus, despite Smith’s subjective belief that she needed justified to free the minor who had been sexually assaulted. to inspect the Bluegrass residence quickly, she was not in Johnson, 22 F.3d at 680. However, we concluded that need of immediate aid. Nothing in the record suggests that exigent circumstances did not justify the officers’ seizure of Nos. 02-5001/5002/5003 United States v. 13 14 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
firearms found in the closet without a warrant because once suspect was going nowhere if he came out of the house [as] the officers had freed the minor, “the police had ample time he would have been promptly apprehended”). Agent to secure the premises and to obtain a search warrant.” Id. Henderson never even attempted to set in motion the chain of events suggested by the Government attorney at oral Agent Teal testified that he did not believe that there was argument. any emergency at the Bluegrass residence. Further, Agent Teal testified that he had no “real reason” to believe that After Agent Henderson completed the warrantless entry anyone was in the residence. Certainly, the officers had no into the Bluegrass residence, the agents established information that suggested that Leek, George, or the dog was surveillance of the residence before seeking and securing a inside the residence. Moreover, Smith and Barnett had been warrant. George and Leek did not return to the residence in in the residence earlier in the day; although they were afraid the interim. However, if they had returned, the agents could for their safety, there was nothing that suggested they were have impounded the residence and prohibited George and actually in danger. Moreover, the possibility of significant Leek from entering until the necessary warrants were secured. water damage in the Bluegrass residence was speculative, at See Illinois v. McArthur, 531 U.S. 326, 331 (2001) (holding best, given that Smith saw no evidence of damage when she that police impoundment of residence that restrained entered the residence earlier in the day. Thus, it is clear that defendant from entering until warrant could be obtained was this case does not involve a “risk of danger to the police or proper). We find it clear, based, in particular, upon the others,” O’Brien, 23 F.3d at 997, other than the danger, if any, Government’s concession at oral argument that alternative created by the DEA agents themselves. Thus, there is nothing courses of action were available to the officers, that no “real to suggest that Agent Henderson was faced with a danger that immediate and serious consequences” would “certainly he could not address after obtaining a warrant. See Johnson, occur” by the failure to enter the Bluegrass residence. 22 F.3d at 680. Nevertheless, the district court, relying on this Court’s Moreover, it is clear that securing a warrant in this case decision in Rohrig, concluded that exigent circumstances would not have presented any significant problem. At oral existed. In Rohrig, a divided panel of this Court held that a argument, the Government conceded that there were warrantless entry into a private home was justified under the alternatives available to the agents and that they did not need “exigent circumstances” exception to the warrant requirement to enter the Bluegrass residence without a warrant. In fact, by the need to quell a loud noise emanating from a private the attorney for the Government represented that, had the home that bothered neighbors late at night. 98 F.3d at 1522. agents secured the residence and called him, he would have In Rohrig, local police officers responded to a complaint that obtained a warrant for them in short order. The availability loud noise was coming from the residence after 1:30 in the of alternatives demonstrates that the immediacy required by morning. Id. at 1509. While a cadre of angry, “pajama-clad” our “exigent circumstances” jurisprudence was not present neighbors looked on, the officers walked around the home, here. Cf. Olsen, 495 U.S. at 100 (holding exigent knocking on the front door and first-floor windows. Id. circumstances did not justify warrantless entry into apartment Through a window, the officers observed speakers on the first where robbery suspect was known to be holed up because the floor and speaker wires on the outside of the residence. Id. police had surrounded the apartment, there was no suggestion Because the back door was unlocked and open, although there of danger to those inside with him, and “it was evident the was a closed screen door, the officers entered through the rear Nos. 02-5001/5002/5003 United States v. 15 16 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
of the house. Continuing to announce their presence, the We wish to emphasize the fact-specific nature of [our] officers walked into the kitchen, around the first floor, into holding. By this decision, we do not mean to fashion a the basement, where they discovered marijuana growing, and, broad “nuisance abatement” exception to the general rule finally, to the second floor where they discovered the stereo that warrantless entries into private homes are as well as the defendant, who was passed out on the floor. Id. presumptively unreasonable. We simply find that, in some cases, it would serve no Fourth Amendment The Rohrig Court concluded that “none of the traditionally purpose to require that the police obtain a warrant before recognized exigent circumstances [wa]s squarely presented taking reasonable steps to abate an immediate, ongoing, under the facts of th[at] case.” Id. at 1519. Instead, the and highly objectionable nuisance, and we conclude that Rohrig Court admittedly “fashioned a new exigency that this is just such a case. justifies warrantless entry” for “an ongoing [late night] breach of the peace” based on the following three considerations Id. at 1525 n.11. This statement makes clear that the Rohrig culled from the Supreme Court’s Fourth Amendment Court did not intend for its decision to have broad jurisprudence. applicability. Thus, because we find the present case materially distinguishable from Rohrig and because we [O]ur review of the precedent governing our “exigent adhere to that panel’s suggestion that its decision should not circumstances” inquiry reveals that three considerations be extended beyond the facts of that case, we find that Rohrig play key roles. First, we must ask whether the is not controlling here. Government has demonstrated a need for immediate action that would have been defeated if the . . . police Rohrig involved an “immediate, ongoing, and highly officers had taken the time to secure a warrant. Next, we objectionable nuisance,” while this case involves no nuisance must identify the governmental interest being served by at all. The possible water leak in this case posed no threat or the officers’ entry into Defendants’ home, and ask nuisance to any member of the public. Rather, the agents in whether that interest is sufficiently important to justify a this case were concerned with protecting one woman while warrantless entry. Finally, we must weigh this she abated potential damage to her carpet. Despite Smith’s governmental interest against Defendant’s interest in speculative concerns, there is no immediacy in this case. maintaining the privacy of his home, and ask whether Defendant’s conduct somehow diminished the reasonable Moreover, in Rohrig, time was “of the essence.” Id. at expectation of privacy he would normally enjoy. 1521. There, the officers were confronted with a loud noise, which could be heard from a block away. Unable to sleep, Id. at 1518. At the time, this approach was unprecedented in angry neighbors sought the immediate assistance of the this circuit. police. Were the officers to seek a warrant, the noise would have “continued unabated for a significant period of time.” Id. The Rohrig Court explained its decision as “fact-specific,” In contrast, in this case, time was hardly of the essence in suggesting that the decision should not have broad application abating the possible water leak. The agents in this case were to significantly different fact patterns. Specifically, the Court not called to the Bluegrass residence in the middle of the stated: night by frantic neighbors. Rather, as noted previously, Smith and Barnett made an appointment to meet with them Nos. 02-5001/5002/5003 United States v. 17 18 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
concerning the possible water leak and their suspicion of drug caretakers, id. at 1523, it is not clear that the officers were activity. acting solely in this capacity here. The community caretaking function of the police cannot apply where, as here, there is The Rohrig Court concluded that there was a compelling significant suspicion of criminal activity. As the Supreme governmental interest involved there because the police Court has explained, the community caretaking function of officers were performing a “community caretaking function” the police applies only to actions that are “totally divorced when they sought to abate the nuisance. Acknowledging that from the detection, investigation, or acquisition of evidence looking to the severity of the offense committed, as the relating to the violation of a criminal statute.” See Cady v. Supreme Court did in Welsh, suggests that no vital Dombrowski, 413 U.S. 433, 441 (1973). Additionally, government interest was served by the warrantless entry to despite references to the doctrine in Rohrig, we doubt that quell a disturbing noise, the Rohrig court concluded that, “the community caretaking will generally justify warrantless Welsh analysis has less relevance as one moves away from entries into private homes. traditional law enforcement functions and toward what the Supreme Court has referred to as ‘community caretaking Rohrig relied on cases in which a lower federal court and a functions.’” Rohrig, 98 F.3d at 1521. Rohrig focused, state supreme court each concluded that water leaking into however, on the fact that the officers in that case had only a apartments below sufficiently threatened the safety of the limited purpose—abating the nuisance—and were not inhabitants of neighboring apartments to justify a warrantless “questioning a subject or searching for evidence of a intrusion. Id. at 1520 (citing United States v. Boyd, 407 F. suspected offense.” Id. Supp. 693, 694 (S.D.N.Y. 1976) and State v. Dube, 665 A.2d 338, 399 (Me. 1995)). This case, however, is distinguishable Here, the agents’ motives in entering were arguably not as from those situations where the police are informed that there pure. The agents testified that Agent Henderson entered the is definitely a water leak and that it is threatening to damage apartment in his capacity as a member of the local Sheriff’s not only the apartment where the leak might be found, but Department and not as a federal agent. However, the agents also is threatening to harm the apartment – and, importantly, in this case were called to the Bluegrass residence in their the neighbors – below. Unlike the situations in Rohrig, capacity as DEA agents. Smith and Barnett had explained Boyd, and Dube where the problem the police sought to over the telephone that they suspected drug activity in the address was certain, the possible water leak in this case was house and described the smell and leaves in the residence. only speculative. Moreover, the danger, if any, in this case The officers too suspected drug activity prior to the entry. was to the carpet in the Bluegrass residence only. There was Thus, although the officers ostensibly entered the home to no potential for another residence to be damaged or for other assist Smith, they were also suspicious, if not convinced, that people to be disturbed by the possible water leak at the drug-related activity was taking place inside the residence Bluegrass residence. As the district court concluded, before they entered without a warrant. Unlike the entry in protecting Defendants’ interest in maintaining the privacy of Rohrig, the entry in this case cannot be said to have been the Bluegrass residence would not diminish their neighbors’ solely related to Agent Henderson’s “community caretaking interest in maintaining the privacy of their own houses as was function.” Thus, even if we apply Rohrig’s conclusion that the case in Rohrig, as well as in Boyd, and Dube. See Rohrig, the warrant requirement is implicated to a “lesser degree” 98 F.3d at 1522; Boyd, 407 F. Supp. at 694; Dube, 665 A.2d when police officers act in their roles as community at 399. Nos. 02-5001/5002/5003 United States v. 19 20 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
The Government contends that Defendants had a an infringement on Defendants’ privacy than did the earlier diminished interest in maintaining the privacy of the search by Smith and Barnett. Defendants counter that the Bluegrass residence because they were not using it as their private search doctrine does not apply to residences under this primary residence. Generally, as noted above, the home is Court’s decision in United States v. Allen, 106 F.3d 695 (6th sacrosanct. See Payton, 445 U.S. at 585. Although it appears Cir. 1997). that Defendants were not using the Bluegrass residence as their primary abode, we decline to address whether the Although Tennessee law probably did not permit Smith and Bluegrass residence was entitled to a lesser degree of Fourth Barnett to enter the Bluegrass residence,2 Defendants’ Fourth Amendment protection than a traditional residence because Amendment rights were not infringed when they did so on we find that Defendants maintained some significant and October 22, 1999. The Fourth Amendment is “wholly legitimate privacy interest in the Bluegrass residence and, inapplicable ‘to a search or seizure, even an unreasonable one, under the circumstances of this case, the warrantless entry at effected by a private individual not acting as an agent of the issue would not be justified under even the most basic of Government or with the participation or knowledge of any Fourth Amendment protections. governmental official.’” See United States v. Jacobsen, 466 U.S. 109, 114-15 (1984) (quoting Walter v. United States, 447 The Supreme Court has emphatically held that the Fourth U.S. 649, 662 (1980) (Blackmun, J., dissenting)). Amendment protects “‘the sanctity of a man’s home and the privacies of life’” from unreasonable government invasions. In Jacobsen, the Supreme Court held that a private search Payton, 445 U.S. at 585 (quoting Boyd v. United States, 116 followed by a Government search may be appropriate under U.S. 616, 630 (1886)). Every citizen has a fundamental right certain circumstances. Id. at 121. That case involved a to the protections guaranteed by the Fourth Amendment. package damaged during shipping by a private shipping Here, experienced government agents committed an egregious company, opened by employees of that company, and found violation of the Fourth Amendment when they failed to obtain to contain a cocaine-like substance. The Supreme Court held a warrant prior to entering the Bluegrass residence. The that no Fourth Amendment violation occurred when the agents knew that there was absolutely no exigency, and they company summoned law enforcement officials, who then re- clearly could have obtained a warrant. What occurred in the traced the private search. Id. The Court held that “additional circumstances of this case is precisely what the Fourth invasions of . . . privacy by [a] government agent [following Amendment seeks to avoid. We find it clear that the entry into the Bluegrass residence was not justified by exigent circumstances. Thus, unless this entry was permissible under 2 the private search doctrine as the Government argues, the The Blue grass residence lease did not co ntain any provision permitting Smith, as landlord, to enter the residence at will. Tennessee government clearly violated the Fourth Amendment when it law perm its a landlord to “enter [a] dwelling unit without consent of the conducted a warrantless entry into the Bluegrass residence. tenant in case of emergency,” which is defined as “a sudden, generally unexpected occurrence or set of circum stances demanding imm ediate 2. Private Search action.” T E N N . C ODE A N N . § 66 -28-4 03(b). Just as we conclude that the pos sible water leak at issue here cannot constitute an “exigent Alternatively, the Government argues that the warrantless circumstance” under the Fourth Amendment, it likewise cannot be a “sudden” circumstance “demanding immediate action” under this entry was justified as a private search that caused no more of provision of Tennessee law. Nos. 02-5001/5002/5003 United States v. 21 22 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
on the heels of a private search] must be tested by the degree justify Agent Henderson’s search. Smith requested that to which they exceeded the scope of the private search.” Id. Agent Henderson enter the Bluegrass residence precisely at 115. Thus, the Government may not exceed the scope of because she wanted him to complete a broader search than her the private search unless it has an independent right to search. search earlier in the day. Earlier, Smith had declined to go Id. at 121 (“The fact that . . . respondents’ privacy interest in beyond the living room and kitchen of the Bluegrass the contents of the package had been largely compromised is residence because the residence was dark and she feared for highly relevant to the reasonableness of the agents’ conduct her safety should George or Leek return. Agent Henderson . . . .”). retraced Smith’s steps, but checked under the kitchen sink, where Smith had not looked, and then navigated the rest of In Allen, a panel of this Court unequivocally stated: “[T]his the house with a flashlight, including the bedrooms, Court is unwilling to extend that holding of Jacobsen to cases washroom, and bathrooms. Thus, we hold that the involving private searches of residences.” 106 F.3d at 699. warrantless entry and search of the Bluegrass residence was The Government makes much of the fact that the Allen Court not justified by the private search doctrine. Moreover, failed to acknowledge dicta in this Court’s earlier decision in because the warrantless entry into the Bluegrass residence United States v. Clutter, 914 F.2d 775 (6th Cir. 1990), which was not justified by exigent circumstances or any other suggested that the private search doctrine could apply to exception to the Fourth Amendment’s warrant requirement, homes. Clutter held that a warrantless search of a home was the agents should have obtained a warrant.3 justified by a child’s consent because that child was routinely left in exclusive control of the home that he shared with his B. Williams’s Fourth Amendment Claims siblings, mother, and the defendant. Id. at 778. In dicta, however, the Court also explained that the search was also The district court stated: “It is undisputed that if Agent reasonable because, after entering the home with consent, the Henderson’s first warrantless entry of the Bluegrass residence officer merely retraced the private search and confirmed the was unconstitutional, then all subsequent evidence was fruits of that search. Id. at 779. We now conclude that the obtained unlawfully because the subsequent search and arrest Allen Court was not obliged to adhere to the dicta in Clutter warrants were derived solely from evidence obtained by and, further, find that the Clutter Court’s failure to make any Agent Henderson during that entry.” On appeal, the real distinction between a federal express package and a Government argues that even if the warrantless entry of the home, which is entitled to significantly more protection, casts Bluegrass residence was unconstitutional, Williams lacks doubt on the alternative holding in that decision. standing to challenge the subsequent searches and the “fruit of the poisonous tree” doctrine cannot extend to him. However, even assuming that the Bluegrass residence was Williams concedes that he lacks standing to contest the not a place of abode because it “contained nothing but contraband,” we must discern whether Agent Henderson’s search infringed upon any constitutionally protected privacy 3 interest of Defendants not already frustrated by Smith’s Given our findings that Defendants’ constitutional rights were private search. Because we find that the scope of the violated by the warrantless entry into the Bluegrass residence on October 22, 1999, we do not have occ asion to add ress Defend ants’ other Government search necessarily exceeded the scope of the challenges relating to the searches and arrests tha t stemmed from this private search, we find that the private search doctrine cannot warrantless arre st. Nos. 02-5001/5002/5003 United States v. 23 24 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
warrantless entry, but counters that the Supreme Court’s with the unconstitutional warrantless entry into the Bluegrass decision in Wong Sun v. United States, 371 U.S. 471 (1963), residence. There was no intervening information, inquiry, or requires suppression of all evidence obtained as a result of the surveillance to purge the evidence obtained at the Meridale information derived from the warrantless entry into the residence of the taint associated with the illegal entry into the Bluegrass residence. Under the circumstances presented by Bluegrass residence. Thus, we conclude that the connection this case, we agree that the “fruit of the poisonous tree” between the unlawful entry and the arrest of Williams at the doctrine extends to the evidence against Williams. Meridale residence was not “so attenuated as to dissipate the taint.” Id. at 491. The “exclusionary rule” requires, generally, that evidence seized during an unlawful search cannot be used as proof III. CONCLUSION against the victim of the search. Id. at 484. This prohibition extends to evidence obtained directly from the unlawful For the reasons stated above, we REVERSE the decision invasion as well as that which is indirectly obtained. Id. The of the district court to deny Defendants’ motions to suppress Supreme Court explained: and REMAND this case for further proceedings consistent with this opinion. [N]ot . . . all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting the establishment of the primary illegality, the evidence to which instant objection is made had been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Id. at 487-88. Here, the Johnson City officers were searching for George at the Meridale residence when they arrested Williams, who was present in the Meridale residence at the time. The arrest warrant for George and the knowledge of the Meridale residence was obtained solely based on information obtained during the warrantless entry. In this case, it is clear that “but for” the illegal warrantless entry of the Bluegrass residence, the agents would not have obtained evidence against Williams. Moreover, though, the entry into the Meridale residence was not “come at” “by means sufficiently distinguishable to be purged of the primary taint” associated