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. 0456A (6th Cir.) Williams, et al. File Name: 03a0456a.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 AMENDED 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: December 29, 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.
1 Nos. 02-5001/5002/5003 United States v. 3 4 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
of Defendants Leek and George’s motions and REMAND for Smith asked her niece, Lucille Barnett, to accompany her to further proceedings, but we AFFIRM the district court’s inspect the Bluegrass residence. denial of Defendant Williams’s motion to suppress. Around 10:30 a.m. on October 22, Smith and Barnett I. BACKGROUND arrived at the Bluegrass residence. Although the gate was open, Leek, George, and the dog were not at the residence. The charges against Defendants Geoffrey Hillman Leek, Smith used a copy of the house key to enter the Bluegrass Nicholas Edward George, and Hunter Lee Williams arise out residence. As she and Barnett entered, Smith smelled of a warrantless entry by federal agents into a residence at something odd. Smith and Barnett saw leaves all over the 10223 Bluegrass Road, Knoxville, Tennessee (the “Bluegrass floor, and no furniture in the residence save a punching bag residence”) on October 22, 1999. The owner of this property, and trash cans. Soft music was playing. The pair walked Theresa Smith, leased the residence to Leek and George. through the living room and inspected the kitchen, finding no Smith, an elderly widow who owns seven rental properties in leaks. Although they saw no leaks nor any water or water the Knoxville area, testified that she had no complaints about damage, they left without checking the entire residence Leek or George, and that Leek always paid the rent, $850.00 because it was dark, the lights did not work, and they were per month, on time and in cash. Under the lease, Smith was afraid. responsible for the water bill. After they left, Barnett called the Drug Enforcement On October 7, 1999, Smith received a bill for the combined Agency (“DEA”). Barnett explained to DEA Agent Tim Teal water usage at four of her rental properties—the Bluegrass that Smith had received a high water bill for several rental residence, a modular home, a trailer, and a camper. On properties that she owned, including the Bluegrass residence. October 22, 1999, when Smith prepared to pay the bill, she She explained that she had accompanied her aunt to the concluded that it was higher than normal. Specifically, Smith Bluegrass residence to look for leaks, and based on the plant testified that the October 7 bill totaled $39.16, while the bill material and lack of light and furniture in the residence, they for the previous month totaled $27.86. Notably, the suspected drug activity. Barnett also informed Teal that Leek November 1999 bill totaled $46.41 and Smith testified that a always paid the rent in cash. Based on this information, bill of nearly forty dollars was not unusual. However, Smith Agent Teal suspected that the residence was either a claimed that a bill of nearly forty dollars was odd for the “[m]arijuana grow or marijuana stash house, one or the period measured in the October 7 bill because two of the other.” Agent Teal agreed to meet with the women at the residences were vacant. Bluegrass residence at 1:00 p.m. that day. Approximately five years earlier, a water leak in the kitchen Agent Teal asked DEA Agent David Henderson, who was caused damage to the Bluegrass residence. Thus, suspecting also employed by the Knox County Sheriff’s Department, to a possible water leak, Smith set out to inspect each of the four accompany him. When they arrived at the Bluegrass properties. Smith did not call any of her tenants in advance. residence at 1:20 p.m., the women explained that Smith Smith inspected the modular home, trailer, and camper, but owned the Bluegrass residence, but rented it to Leek and found no leaks. Fearing a dog that Leek and George owned, George. Reiterating some of the information that Barnett had relayed to Agent Teal on the telephone, Smith and Barnett Nos. 02-5001/5002/5003 United States v. 5 6 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
showed the agents the lease, described the water bill, and established surveillance there. Later in the day, Agent explained that they had checked the three other rental Henderson obtained state arrest warrants for Leek and properties for a leak already. George. The affidavit for these warrants was based entirely on information obtained from Agent Henderson’s warrantless 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 Meridale residence. Thus, police officers from Johnson City, Tennessee, acting on information provided by Agents Teal 1 and Henderson, eventually executed the arrest warrant for Agent Henderson testified that the Sheriff’s Department guidelines permitted him to enter the residence with Smith, to “protect her.” As the George at the Meridale residence. The officers did not locate district court observed, “These guidelines were never introduced into the George in the residence, but they did see marijuana, and they record. W hether or no r the Sheriff’s Departm ent has ‘guidelines’ arrested Hunter Williams, who was present there. The allowing deputies to enter homes in certain circumstances has no legal significance on the constitutionality of the warrantless entry into th[e] officers later sought and obtained a search warrant for the [Bluegrass] residence.” Meridale residence. Upon executing that search warrant, the Nos. 02-5001/5002/5003 United States v. 7 8 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
officers recovered 295 marijuana plants, approximately eighty Williams to serve fifteen months of imprisonment to be bundles of marijuana leaves, and implements used for followed by three years of supervised release. Defendants growing marijuana, such as lights and a carbon dioxide specifically reserved their rights to appeal the denial of their enrichment system. suppression motions and now appeal this denial. 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 Nos. 02-5001/5002/5003 United States v. 9 10 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
describing the place to be searched, and the persons or things 2003). “The government bears the burden of proving [that] to be seized.” U.S. CONST . amend IV. The “chief evil” exigent circumstances existed.” Bates, 84 F.3d at 794. This against which the Fourth Amendment protects is the “physical Court has explained that the following situations may give entry of the home.” Payton v. New York, 445 U.S. 573, 585 rise to exigent circumstances: “(1) hot pursuit of a fleeing (1980). The Fourth Amendment requires that searches of the felon; (2) imminent destruction of evidence; (3) the need to 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 Nos. 02-5001/5002/5003 United States v. 11 12 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
impounding the residence and seeking a warrant, rather than agents were with Smith, who was safe outside the residence, entering the home without a warrant. We agree. Smith had but who insisted on going inside to search for a possible water waited two weeks after receiving the October 7 water bill leak. Thus, despite Smith’s subjective belief that she needed before opening it on October 22 and concluding that there to inspect the Bluegrass residence quickly, she was not in might be a leak. At that time, she suspected a leak and set out need of immediate aid. Nothing in the record suggests that 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 Nos. 02-5001/5002/5003 United States v. 13 14 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
entry by police officers responding to a call that a minor was here. Cf. Olsen, 495 U.S. at 100 (holding exigent being held in a closet in the apartment against her will was circumstances did not justify warrantless entry into apartment justified to free the minor who had been sexually assaulted. where robbery suspect was known to be holed up because the Johnson, 22 F.3d at 680. However, we concluded that police had surrounded the apartment, there was no suggestion exigent circumstances did not justify the officers’ seizure of of danger to those inside with him, and “it was evident the 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, Nos. 02-5001/5002/5003 United States v. 15 16 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
knocking on the front door and first-floor windows. Id. The Rohrig Court explained its decision as “fact-specific,” Through a window, the officers observed speakers on the first suggesting that the decision should not have broad application floor and speaker wires on the outside of the residence. Id. to significantly different fact patterns. Specifically, the Court Because the back door was unlocked and open, although there stated: was a closed screen door, the officers entered through the rear 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. Nos. 02-5001/5002/5003 United States v. 17 18 United States v. Nos. 02-5001/5002/5003 Williams, et al. Williams, et al.
In contrast, in this case, time was hardly of the essence in Rohrig, the entry in this case cannot be said to have been abating the possible water leak. The agents in this case were solely related to Agent Henderson’s “community caretaking not called to the Bluegrass residence in the middle of the function.” Thus, even if we apply Rohrig’s conclusion that night by frantic neighbors. Rather, as noted previously, Smith the warrant requirement is implicated to a “lesser degree” and Barnett made an appointment to meet with them when police officers act in their roles as community 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 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 Bluegrass residence would not diminish their neighbors’ government clearly violated the Fourth Amendment when it interest in maintaining the privacy of their own houses as was conducted a warrantless entry into the Bluegrass residence. the case in Rohrig, as well as in Boyd, and Dube. See Rohrig, 98 F.3d at 1522; Boyd, 407 F. Supp. at 694; Dube, 665 A.2d 2. Private Search at 399. Alternatively, the Government argues that the warrantless The Government contends that Defendants had a entry was justified as a private search that caused no more of diminished interest in maintaining the privacy of the an infringement on Defendants’ privacy than did the earlier Bluegrass residence because they were not using it as their search by Smith and Barnett. Defendants counter that the primary residence. Generally, as noted above, the home is private search doctrine does not apply to residences under this sacrosanct. See Payton, 445 U.S. at 585. Although it appears Court’s decision in United States v. Allen, 106 F.3d 695 (6th that Defendants were not using the Bluegrass residence as Cir. 1997). their primary abode, we decline to address whether the Bluegrass residence was entitled to a lesser degree of Fourth Although Tennessee law probably did not permit Smith and Amendment protection than a traditional residence because Barnett to enter the Bluegrass residence,2 Defendants’ Fourth we find that Defendants maintained some significant and Amendment rights were not infringed when they did so on legitimate privacy interest in the Bluegrass residence and, October 22, 1999. The Fourth Amendment is “wholly under the circumstances of this case, the warrantless entry at inapplicable ‘to a search or seizure, even an unreasonable one, issue would not be justified under even the most basic of effected by a private individual not acting as an agent of the Fourth Amendment protections. Government or with the participation or knowledge of any governmental official.’” See United States v. Jacobsen, 466 The Supreme Court has emphatically held that the Fourth U.S. 109, 114-15 (1984) (quoting Walter v. United States, 447 Amendment protects “‘the sanctity of a man’s home and the U.S. 649, 662 (1980) (Blackmun, J., dissenting)). privacies of life’” from unreasonable government invasions. Payton, 445 U.S. at 585 (quoting Boyd v. United States, 116 In Jacobsen, the Supreme Court held that a private search U.S. 616, 630 (1886)). Every citizen has a fundamental right followed by a Government search may be appropriate under to the protections guaranteed by the Fourth Amendment. certain circumstances. Id. at 121. That case involved a Here, experienced government agents committed an egregious violation of the Fourth Amendment when they failed to obtain a warrant prior to entering the Bluegrass residence. The 2 agents knew that there was absolutely no exigency, and they The Blue grass residence lease did not co ntain any provision permitting Smith, as landlord, to enter the residence at will. Tennessee clearly could have obtained a warrant. What occurred in the law perm its a landlord to “enter [a] dwelling unit without consent of the circumstances of this case is precisely what the Fourth tenant in case of emergency,” which is defined as “a sudden, generally Amendment seeks to avoid. We find it clear that the entry unexpected occurrence or set of circum stances demanding imm ediate into the Bluegrass residence was not justified by exigent action.” T E N N . C ODE A N N . § 66 -28-4 03(b). Just as we conclude that the circumstances. Thus, unless this entry was permissible under pos sible water leak at issue here cannot constitute an “exigent circumstance” under the Fourth Amendment, it likewise cannot be a the private search doctrine, as the Government argues, the “sudden” circumstance “demanding immediate action” under this 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.
package damaged during shipping by a private shipping However, even assuming that the Bluegrass residence was company, opened by employees of that company, and found not a place of abode because it “contained nothing but to contain a cocaine-like substance. The Supreme Court held contraband,” we must discern whether Agent Henderson’s that no Fourth Amendment violation occurred when the search infringed upon any constitutionally protected privacy company summoned law enforcement officials, who then re- interest of Defendants not already frustrated by Smith’s traced the private search. Id. The Court held that “additional private search. Because we find that the scope of the invasions of . . . privacy by [a] government agent [following Government search necessarily exceeded the scope of the on the heels of a private search] must be tested by the degree private search, we find that the private search doctrine cannot to which they exceeded the scope of the private search.” Id. justify Agent Henderson’s search. Smith requested that at 115. Thus, the Government may not exceed the scope of Agent Henderson enter the Bluegrass residence precisely the private search unless it has an independent right to search. because she wanted him to complete a broader search than her Id. at 121 (“The fact that . . . respondents’ privacy interest in search earlier in the day. Earlier, Smith had declined to go the contents of the package had been largely compromised is beyond the living room and kitchen of the Bluegrass highly relevant to the reasonableness of the agents’ conduct residence because the residence was dark and she feared for . . . .”). her safety should George or Leek return. Agent Henderson retraced Smith’s steps, but checked under the kitchen sink, In Allen, a panel of this Court unequivocally stated: “[T]his where Smith had not looked, and then navigated the rest of Court is unwilling to extend that holding of Jacobsen to cases the house with a flashlight, including the bedrooms, involving private searches of residences.” 106 F.3d at 699. washroom, and bathrooms. Thus, we hold that the The Government makes much of the fact that the Allen Court warrantless entry and search of the Bluegrass residence was failed to acknowledge dicta in this Court’s earlier decision in not justified by the private search doctrine. Moreover, United States v. Clutter, 914 F.2d 775 (6th Cir. 1990), which because the warrantless entry into the Bluegrass residence suggested that the private search doctrine could apply to was not justified by exigent circumstances or any other homes. Clutter held that a warrantless search of a home was exception to the Fourth Amendment’s warrant requirement, justified by a child’s consent because that child was routinely the agents should have obtained a warrant. left in exclusive control of the home that he shared with his siblings, mother, and the defendant. Id. at 778. In dicta, B. Williams’s Fourth Amendment Claims however, the Court also explained that the search was also reasonable because, after entering the home with consent, the The district court stated: “It is undisputed that if Agent officer merely retraced the private search and confirmed the Henderson’s first warrantless entry of the Bluegrass residence fruits of that search. Id. at 779. We now conclude that the was unconstitutional, then all subsequent evidence was Allen Court was not obliged to adhere to the dicta in Clutter obtained unlawfully because the subsequent search and arrest and, further, find that the Clutter Court’s failure to make any warrants were derived solely from evidence obtained by real distinction between a federal express package and a Agent Henderson during that entry.” On appeal, the home, which is entitled to significantly more protection, casts Government argues that even if the warrantless entry of the doubt on the alternative holding in that decision. Bluegrass residence was unconstitutional, Williams lacks standing to challenge the subsequent searches and the “fruit of the poisonous tree” doctrine cannot extend to him. Nos. 02-5001/5002/5003 United States v. 23 Williams, et al.
Williams concedes that he lacks standing to contest the warrantless entry, but counters that the Supreme Court’s decision in Wong Sun v. United States, 371 U.S. 471 (1963), requires suppression of all evidence obtained as a result of the information derived from the warrantless entry into the Bluegrass residence. We disagree. It is well-established that “‘Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.’” Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969)). It follows that “suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Co-conspirators and codefendants have been accorded no special standing.” United States v. Padilla, 508 U.S. 77, 81-82, 113 S.Ct. 1936, 1939, 123 L.Ed.2d 635 (1993) (per curiam) (quoting Alderman, 394 U.S. at 171-72, 89 S.Ct. at 965-66). Indeed, this Court has previously rejected the reading of Wong Sun urged upon us by Williams. This Court has twice held that Wong Sun precludes the argument that a defendant is entitled to the suppression of evidence simply because it is the fruit of a violation of his co-defendant’s Fourth Amendment rights. Accordingly, we affirm the district court’s denial of Williams’s motion to suppress. III. CONCLUSION For the reasons stated above, we REVERSE the decision of the district court to deny Defendants Leek and George’s motions to suppress and REMAND this case for further proceedings consistent with this opinion. However, also for the reasons set forth above, we AFFIRM the district court’s denial of Williams’s motion to suppress.