           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.
