                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0257p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                 X
                          Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                       No. 08-3317
          v.
                                                  ,
                                                   >
                                                  -
                         Defendant-Appellee. -
 TRACY WASHINGTON,
                                                  -
                                                 N
                   Appeal from the United States District Court
                  for the Southern District of Ohio at Cincinnati.
             No. 07-00052-001—Michael R. Barrett, District Judge.
                                 Argued: June 12, 2009
                           Decided and Filed: July 22, 2009
    Before: BOGGS, Chief Judge; and BATCHELDER and COOK, Circuit Judges.

                                  _________________

                                      COUNSEL
ARGUED: Daniel S. Goodman, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant. Richard W. Smith-Monahan, FEDERAL PUBLIC
DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: Daniel S. Goodman,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant.
Richard W. Smith-Monahan, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati,
Ohio, for Appellee.
                                  _________________

                                       OPINION
                                  _________________

       BOGGS, Chief Judge. In the early morning hours of Christmas day, two police
officers entered George Young’s apartment without his permission or a warrant. His
nephew, Tracy Washington, had been residing in the apartment for several months and was
entertaining friends. Young was in jail at the time and the police told Washington that he
was suspected of criminal trespass. Despite Washington’s vigorous and repeated objections,



                                            1
No. 08-3317         United States v. Washington                                       Page 2


these officers patted him down and searched the apartment, finding illegal drugs, drug
paraphernalia, and a loaded gun. We affirm the district court’s suppression of this evidence
because the Fourth Amendment prohibits the warrantless search of a private home to
investigate minor offenses, such as this one, that do not pose any threat of imminent violence
or result in an ongoing injury to the community.

                                              I

        Washington began living with his uncle, George Young, in the fall of 2006 at 1906
Elm Street, Cincinnati, Ohio. Police regularly patrolled this building, which was the site of
frequent drug arrests and activity. In his deposition, Officer Brendon Rock said that in the
course of his six years on the Cincinnati police force, he had responded to disturbances in
basically every apartment in the building. During his patrol on December 18, 2006, Officer
Rock recognized Young as the man he had recently observed drop a crack pipe in the
hallway of the building and arrested him on drug paraphernalia charges. As Officer Rock
was ushering Young into a police car, Young shouted up to Washington, who was watching
from the window of the apartment, instructing him to secure the apartment and keep people
out.

        A few days after Young’s arrest, the building’s landlord, Jeff Moore, informed
Officer Rock that he had observed a number of non-residents loitering in the halls. There
were already many signs in the hallways indicating that trespassers and non-residents were
unwelcome, and Moore requested that police officers patrol the building and remove any
such individuals. With respect to Young’s apartment, Moore told Rock that tenants had
informed him there was a great deal of foot traffic and a tenant had seen one man enter the
unit with a gun. Moore also apparently told Rock that, in light of Young’s arrest, no one was
permitted to be in the unit. However, he did not indicate that there had been or would be any
attempt to evict Young. Officer Rock did not act on this information immediately or make
any effort to obtain a warrant on the basis of this tip. Rather, he agreed to continue
patrolling the building’s halls.

        Driving past the apartment building a few days later at 5:40 am on December 25,
2006, Officer Rock observed two women on the street engaged in a verbal altercation. One
of the women involved, Ellen Wilson, told Officer Rock that she was Young’s girlfriend and
No. 08-3317         United States v. Washington                                       Page 3


was looking after his apartment while he was in jail. From the street, Officer Rock observed
that the lights in Young’s apartment were on. Wilson told Rock that there were two people
in the unit. She did not request his help or say they were trespassing. Nevertheless, Rock
claims that his unspoken assumption at the time was that any visitors were trespassing
because the landlord had previously told him that no one other than Young was permitted
in the unit. At Rock’s request, Wilson agreed to let the police search the apartment. For his
own part, Rock later testified that he did not believe Wilson had authority to consent to the
search. Asked why he bothered obtaining her written authorization, he explained, “to cover
all my bases.”

        Wilson accompanied Rock to the apartment, knocked on the door and exclaimed that
she was with the police. An unknown person in the apartment opened the door. Officer
Rock and his partner entered. Washington was among those who were immediately visible,
and he became belligerent and told Rock that he was not allowed in the apartment. Officer
Rock testified that drug paraphernalia in the living room was in plain view once he was
inside the apartment. Nothing in the record suggests this material was visible from the
doorway. Upon seeing this evidence of criminal activity, Rock asked the defendant if he had
anything illegal in his possession. Washington replied, “You can’t search me.” Officer
Rock informed Washington that he was suspected of criminal trespass and would be patted
down. Washington then stated, “I’m dirty.” Rock asked again whether Washington
possessed anything illegal. Washington nodded affirmatively. Rock asked if it was a
firearm, and Washington nodded affirmatively a second time. Rock and his partner placed
Washington in handcuffs and retrieved a .357 revolver from the waistband of Washington’s
pants and a crack pipe from his pocket.

        A criminal history check revealed that Washington was a previously convicted felon
imprisoned for more than one year and so he was charged under 18 U.S.C. § 922(g)(1) for
being in possession of a firearm. Although the district court initially denied the defendant’s
motion to suppress for lack of standing, it then granted the defendant’s motion to reconsider
and suppressed the evidence in light of defendant’s evidence showing that he had an
expectation of privacy in the unit and that the search violated the Fourth Amendment. In its
motion to reconsider, the government for the first time argued that, even if Washington had
an expectation of privacy, both probable cause and exigent circumstances justified the
No. 08-3317         United States v. Washington                                       Page 4


warrantless search of the apartment. The district court denied this motion, and the
government appeals. There are two issues before us: first, did the district court err in
concluding that Washington demonstrated an expectation of privacy in the apartment such
that he now has standing to assert the search violated the Fourth Amendment? And second,
has the government demonstrated that exigent circumstances justified the search so as to
overcome the Fourth Amendment presumption of unreasonableness that attaches to
warrantless searches of a private home?

                                              II

        “When reviewing a district court’s decision on a motion to suppress, we use a mixed
standard of review: we review findings of fact for clear error and conclusions of law de
novo.” United States v. Davis, 514 F.3d 596, 607 (6th Cir. 2008). Washington’s standing
to challenge the search of his uncle’s apartment hinges on whether he had a reasonable
expectation of privacy in the residence. To establish such an expectation, the defendant must
show (1) that he had a subjective expectation of privacy, and (2) that his expectation was
objectively reasonable. United States v. Pollard, 215 F.3d 643, 647 (6th Cir.), cert. denied,
531 U.S. 999 (2000). An expectation is objectively reasonable only when it is one that
“society is prepared to recognize as legitimate.” Ibid.

        The Sixth Circuit has generously construed the Fourth Amendment as protecting
nearly all overnight guests, even when the guest occupies a common area in the apartment
that is not private from other residents. See id. at 647-48 (holding that an occasional
overnight guest who was permitted to be in the residence alone and who kept personal
belongings in a closet in the living room had a reasonable expectation of privacy). In certain
cases, this circuit has even extended standing to challenge a search to non-overnight guests
who are permitted to keep items in the residence. See United States v. Waller, 426 F.3d 838,
844 (6th Cir. 2005) (holding that a transient person who was never an overnight guest had
a reasonable expectation of privacy in a friend’s apartment where he showered, changed
clothes, and kept some personal possessions).
No. 08-3317            United States v. Washington                                                Page 5


         On appeal, the government concedes that Washington had a subjective expectation
              1
of privacy,       Br. Appellant at 28, but gives several reasons why this expectation was
objectively unreasonable. First, the government contends that because Washington was
previously arrested for trespassing in a different unit of the same apartment building, he
could not possibly maintain an objectively reasonable expectation of privacy in the
apartment leased by his uncle. Br. Appellant at 30. The government cites no legal
precedent in support of this claim, and it is without merit. A person who trespasses in
one apartment may legitimately live in another; he is not thereby cast out of the
habitation.

         Next, the government contends that society does not recognize Washington’s
expectation of privacy as reasonable because he was engaged in criminal activities in the
apartment. See Br. Appellant at 31. Although it is certainly true a person cannot acquire
an expectation of privacy in a structure that has been legally condemned such that any
presence is forbidden, United States v. Whitehead, 415 F.3d 583, 587-88 (6th Cir. 2005),
the use of a space for illegal activity does not alter the privacy expectations of a person
who would otherwise have standing. Minnesota v. Carter, 525 U.S. 83, 91 (1998); see
also id. at 109-10 (“As the Solicitor General acknowledged, the illegality of the
host-guest conduct, the fact that they were partners in crime, would not alter the
analysis. . . .      If the illegality of the activity made constitutional an otherwise
unconstitutional search, such Fourth Amendment protection, reserved for the innocent
only, would have little force in regulating police behavior toward either the innocent or
the guilty.”) (Ginsburg, J. dissenting). In light of the fact that Washington had been
lawfully residing in the apartment for several months, the notion that drug use or illegal
activity eviscerates any right to challenge a search cannot possibly be sustained. A
criminal may assert a violation of the Fourth Amendment just as well as a saint.


         1
          The district court’s determination was not clearly erroneous. Young testified that he had given
his nephew keys to the unit and permission to reside in the building. Washington was a frequent overnight
guest who kept clothes and other possessions there. Washington’s brother also testified that the defendant
was living with Young. A person may acquire a reasonable expectation of privacy in property in which
he has neither ownership nor any other legal interest. In Minnesota v. Olson, 495 U.S. 91 (1990), the
Supreme Court held that a person’s “status as an overnight guest is alone enough to show that he had an
expectation of privacy in the home that society is prepared to recognize as reasonable.” Id. at 96-97.
No. 08-3317         United States v. Washington                                      Page 6


        The government’s last argument, perhaps related to its previous one, is that
Washington does not have standing to assert a Fourth Amendment violation because his
legal status at the time of the search was that of a trespasser. Br. Appellant at 29-30. We
have previously held that landlord-tenant law determines whether a person’s expectation
of privacy is objectively reasonable under the Fourth Amendment. United States v.
Hunyady, 409 F.3d 297, 301 (6th Cir. 2005). By definition, trespassers cannot have an
objectively reasonable expectation of privacy in the property on which they are
trespassing. United States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998). But in this
case, Young undeniably acquired a legitimate interest in the apartment when he signed
a lease and invited Washington onto his property. According to the government,
Washington was nevertheless a trespasser because Young’s lease barred multiple
occupants and prohibited tenants from using their apartments for illegal activity. The
government also contends that Young’s failure to pay rent on a timely basis in December
2006, the month of the search, diminished his “ability to confer overnight guest status
on other occupants of his apartment.” Br. Appellant at 30. Leaving aside the specific
allegations of how Young purportedly violated his lease, the very premise of the
government’s argument is flawed because no lawful efforts were ever undertaken to
evict Young or Washington from the apartment.

        The landlord’s mere authority to evict a person cannot of itself deprive that
person of an objectively reasonable expectation of privacy. There are extensive legal
procedures that a landlord must adhere to before occupants are lawfully dispossessed of
property without their consent, and the landlord’s failure to evict an occupant who is in
technical violation of the lease effectively waives whatever authority the landlord has
to treat a person as a trespasser. 49 AM. JUR. 2D Landlord and Tenant § 260 (2009) (“As
general rule, any act of the landlord that affirms the existence of the lease and recognizes
the tenant as lessee, after the landlord has knowledge of a breach of the lease which
would constitute a cause to terminate the lease, results in a waiver by the landlord of the
right to declare a forfeiture of the lease.”); 52 C.J.S. Landlord & Tenant § 185 (2009)
(“When a tenant demonstrates that a landlord long had knowledge of the breach of a real
property lease, yet provided no notice of it to the tenant, the landlord is considered to
No. 08-3317        United States v. Washington                                      Page 7


have encouraged the default, and therefore, should not be allowed to take advantage of
it by claiming forfeiture of lease by the breach.”). In this case, the landlord never
availed himself of these legal procedures. Indeed, Young’s landlord continued accepting
rent in the months after he discovered that Washington lived on the premises and after
other residents began complaining of possible drug activity in connection with his
specific apartment.

       In fact, this case illustrates the intolerable implications of the government’s
claim. The breach on which the government now primarily relies is that “Young got
behind on his rent . . . sometime in December of 2006.” The only support for this
allegation is the landlord’s agreement with a leading question at the suppression hearing.
And there is no evidence that rent was still overdue at the time of the search or that
Officer Rock was even aware of any late rent. If a landlord’s unexercised authority over
a lodging with overdue rent alone divested any occupant of a reasonable expectation of
privacy, millions of tenants and their guests would be deprived of Fourth Amendment
protection. Paying late is a common occurrence, especially in economically turbulent
times, and we reject the notion that the Constitution ceases to apply in these
circumstances.

       This result is completely consistent with landlord-tenant law. Under Ohio law,
“a tenant who ‘holds over’ is a tenant at sufferance and the landlord may elect to treat
him as a trespasser.” Cleveland v. A.J. Rose Mfg. Co., 624 N.E. 2d 245, 248 (Oh. Ct.
App. 1993) (emphasis added). However, an occupant is not a trespasser if the landlord
does not treat him as such. Pollard, 215 F.3d at 647. Accepting rent, fulfilling service
requests, and failing to invoke the remedial provisions of the lease in spite of a lessee’s
breach are all ways a landlord might affirm the continuation of a lease and recognize that
the tenant is lawfully present. See, e.g., Cuyahoga Metro. Hous. Auth. v. Hairston, 124
Ohio Misc. 2d 1, 2 (Cleveland Mun. Ct. 2003); Brokamp v. Linneman, 153 N.E. 130,
131 (Ohio Ct. App. 1923); Quinn v. Cardinal Foods, Inc., 485 N.E. 2d 741, 744-45
(Ohio Ct. App. 1984); see also 49 AM. JUR. 2D Landlord and Tenant § 267.
No. 08-3317        United States v. Washington                                     Page 8


       In support of its argument that the district court erred, the government cites
several cases, none of which defeats our conclusion that a lawful occupant of an
apartment is not analogous to a trespasser simply because the landlord has the legal
authority to evict him. In United States v. Allen, 106 F.3d 695 (6th Cir. 1997), we held
that a hotel guest’s use of a room for illegal purposes and beyond the pre-paid rental
period vitiates the guest’s reasonable expectation of privacy. The motel manager in
Allen had properly evicted the defendant in that case from the room prior to consenting
to a police search. By comparison, the landlord in this case never exercised any lawful
authority over the premises that deprived the defendant of a reasonable expectation of
privacy and standing to challenge a search under the Fourth Amendment. Further, the
nature of the interest held in an apartment differs from that of a hotel room. While
tenants may generally hold over an apartment and are expected to give a landlord notice
of their intent to leave, a hotel guest’s right to a room is limited to a predetermined
period of occupancy. There is a presumption, in other words, that hotel guests will
check out at the designated time and their right in the premises does not automatically
continue for some indefinite period.

       Another case the government cites, United States v. Hunyady, is similarly
inapplicable. In Hunyady, we held that a man who continued to live in a house owned
by his dead father, even after the representative of the estate had the locks changed, did
not have standing to assert a violation of the Fourth Amendment. 409 F.3d at 301-02.
The defendant’s only basis in asserting an expectation of privacy in that case was his
refusal to acquiesce to the representative’s lawful attempts to eject him. Ibid. There is
nothing contradictory about holding that Washington’s expectation of privacy is
legitimate and fundamentally distinct from the expectation of an occupant who broke
into a home after the locks had been changed to keep him out.

       The only apposite authority that the government relies on is United States v.
Ross, 43 F. App’x 751 (6th Cir. 2002). In that case, we had to determine whether a
month-to-month tenant had a reasonable expectation of privacy in his apartment even
though he abandoned the property two months before the search, had not paid rent in
No. 08-3317        United States v. Washington                                      Page 9


four months, and did not tell the landlord that he intended to return. Id. at 757. Ross’s
lease also stipulated that a lessee must vacate the premises without any demand from the
landlord if “any installment of rent is due and unpaid for more than three days.” Ibid.
In several obvious ways, Ross is distinguishable from the case at bar: Washington never
abandoned the apartment; rent was at most twenty-five days overdue, if overdue at all;
and Young’s lease did not specify that he had to vacate the premises immediately in the
event of late payment. For the sake of clarity, however, we note that Ross is unpublished
and not binding, and we do not adhere to it to the extent it could be read to imply that
a tenant’s violation of a lease can alone deprive him and his guests of a legitimate
expectation of privacy. Id. at 757-58.

                                            III

       Because Washington had a legitimate expectation of privacy independent of the
landlord’s right to evict him and we affirm the district court’s decision on standing, we
now proceed to consider whether the investigation of a criminal trespass constitutes an
exigency such that the warrantless search of Washington’s apartment was reasonable
under the Fourth Amendment. “[T]he burden is on the government to demonstrate
exigent circumstances that overcome the presumption of unreasonableness that attaches
to all warrantless home entries.” Welsh v. Wisconsin, 466 U.S. 740 (1984); see also
Hardesty v. Hamburg Twp., 461 F.3d 646, 655 (6th Cir. 2006) (“The government bears
the burden of proving that exigent circumstances . . . justify a warrantless search.”).

       In its original opinion and order suppressing evidence, the district court never
addressed and the government did not raise the issue of exigent circumstances. This
issue instead came up for the first time in the government’s motion for reconsideration,
Pl.’s Mot. Recons. at 4 (asserting that Officer Rock entered the apartment “in response
to apparent on going [sic], immediate criminal activity”), and the district court denied
this motion without elaborating on the merits of the government’s argument. The
government’s failure to raise these points as an alternative justification in either of its
two pleadings opposing the suppression of evidence arguably results in their waiver. See
United States v. Mastromatteo, 538 F.3d 535, 544 (6th Cir. 2008). But because the
No. 08-3317        United States v. Washington                                    Page 10


district court did not explicitly address the government’s argument or explain why it was
denying the motion for reconsideration, we will address whether the warrantless search
was reasonable under the Fourth Amendment.

       In support of holding that the circumstances here, viewed objectively, presented
an exigency, the government observes that “the unit was supposed to be vacant” and that
the landlord informed the police that tenants saw “several people, some of them armed,
. . . going in and out of the unit during the past week.” Br. Appellant at 18. As we have
previously noted, nothing in the record indicates that officers saw any contraband from
the doorway. Rather, the sole exigency stems from Officer Rock’s belief that an
ongoing criminal trespass was taking place.

       A search of a home conducted without a warrant violates the Fourth Amendment
with “only . . . a few specifically established and well-delineated exceptions.” Katz v.
United States, 389 U.S. 347, 357 (1967). The Supreme Court has recognized four
circumstances in which “‘the exigencies of the situation’ make the needs of law
enforcement so compelling that the warrantless search [of a person’s home or his person]
is objectively reasonable under the Fourth Amendment.” Brigham City v. Stuart, 547
U.S. 398, 403 (2006) (quoting Mincey v. Arizona, 437 U.S. 385, 393-394 (1978)).
Exigent circumstances are present as a matter of law (1) to engage in hot pursuit of a
fleeing felon; (2) to prevent the imminent destruction of evidence; (3) to prevent a
suspect from escaping; and (4) to prevent imminent harm to police or third parties. Ibid.;
see also United States v. Rohrig, 98 F.3d 1506, 1515 (6th Cir. 1996).

       With good reason, the government does not contend this case falls into any of
these categories. After all, Officer Rock was clearly not engaged in the “hot pursuit” of
any suspect, let alone a fleeing felon; there was no reason to think that allowing an
ongoing criminal trespass to continue would result in the destruction of any evidence or
the suspect’s escape; and the fact that Officer Rock did not call for backup until after he
entered the apartment strongly suggests that he did not believe the men were armed or,
No. 08-3317            United States v. Washington                                                 Page 11


at a minimum, that an immediate search of the residence was necessary to prevent
imminent harm to himself or third parties.2

         Of course, we have previously observed that “the Fourth Amendment’s broad
language of ‘reasonableness’ is flatly at odds with any claim of a fixed and immutable
list of established exigencies.” Rohrig, 98 F.3d at 1519. In Brigham City, for example,
officers observed a fist fight from outside a home in which a loud party was taking place.
547 U.S. at 403. After observing that a person involved in the fight appeared to be
injured, police officers entered the home without a warrant. Ibid. Holding that exigent
circumstances justified immediate entry into the home, the Supreme Court relied not just
on the potential that further violence might erupt if the police did not intervene, but on
the need “to assist persons who are seriously injured or threatened with such injury.”
Ibid. As the Court explained, the police play a critical role not just in “preventing
violence and restoring order,” but in rendering emergency aid pursuant to the police
force’s role as community caretakers. Id. at 406.

         There is simply no legal support for holding that an ongoing criminal trespass,
on its own, constitutes an exigency that overrides the warrant requirement. Our previous
decisions certainly do not go so far. With one or two exceptions, our decisions fit
squarely into the four categories discussed earlier. The exceptions entail the need to stop
an ongoing nuisance that is disturbing third parties. In Rohrig, police were confronted
with a situation in which extremely loud music was coming from a residence in the
middle of the night. 98 F.3d at 1519. Responding to numerous complaints, police
officers first knocked on the door and windows of the residence. Ibid. When no one
came to the door, the police entered in order to turn off the stereo. Ibid. In the course
of searching for the stereo and conducting a protective sweep, officers came upon illegal


         2
           Cases involving imminent harm generally involve such things as burning buildings, Michigan
v. Tyler, 436 U.S. 499, 509 (1978), or kidnapped minors, United States v. Johnson, 22 F.3d 674 (6th Cir.
1994), where harm is likely and potentially lethal. However, once the police become aware of a battery,
they need not wait to intervene until the threat becomes life-threatening lest a court hold there was no
exigency. Brigham City, 547 U.S. at 406 (“Nothing in the Fourth Amendment required [the police] to wait
until another blow rendered someone ‘unconscious’ or ‘semi-conscious’ or worse before entering. The
role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to
casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too
one-sided.”).
No. 08-3317            United States v. Washington                                                Page 12


drugs. Ibid. We held even though there was no threat of physical injury, it was
reasonable for the officers to enter the home without a warrant to prevent any further
harm to the community. Ibid.

         As we have repeatedly and consistently observed, the critical issue is whether
there is a “true immediacy” that absolves an officer from the need to apply for a warrant
and receive approval from an impartial magistrate. Williams, 342 F.3d at 438. In
burglary cases, the possibility that a lawful resident has been injured or is being held
hostage gives rise to exigent circumstances. See, e.g., United States v. Brown, 449 F.3d
741 (6th Cir. 2006); United States v. McClain, 444 F.3d 556, 563 (6th Cir. 2005). In
Rohrig, the exigency stemmed from an ongoing injury to the community, even if not
resulting in any physical harm. In this case, however, the facts at best evidence the
vague potential for harm to persons or property as opposed to an imminent or ongoing
harm. Even factoring in reports from days earlier that firearms were present, officers
had no reason to believe anyone on the scene intended to use a gun on the property or
that those present were stealing Young’s possessions or ransacking the apartment. And
that Young was in jail meant that he could not be held hostage.

         To be fair, the potential danger posed by drug trafficking and drug traffickers is
greater than a loud stereo, and Washington’s neighbors and landlord no doubt found the
additional foot traffic and unsavory characters traveling to and from the unit irksome if
not frightening. But the government misreads our caselaw in positing that the rationale
of Rohrig must therefore extend to the case at bar. Reply Br. Appellant at 6. When
people may have the capacity to harm others, but are not engaged in an inherently
dangerous activity,3 officers cannot lawfully dispense with the warrant requirement. An
ongoing nuisance that results in non-physical harm to others may constitute an exigency.
However, the mere possibility of physical harm does not.


         3
           The police need not wait until an accident is imminent before they search an area in which they
have probable cause to believe explosive materials are being illegally mishandled. Just as the investigation
of certain minor offenses will never present an exigency, other offenses may be so inherently dangerous
that police can assume from their very ongoing commission that harm is imminent. See, e.g., United States
v. Atchley, 474 F.3d 840, 851 n. 6 (6th Cir.) (holding that the ongoing operation of a methamphetamine
lab in an apartment building constitutes an exigency), cert. denied, 127 S. Ct. 2447 (2007).
No. 08-3317          United States v. Washington                                  Page 13


          It is certainly within our authority to identify new circumstances in which an
exigency exists even if they fall outside of the traditional categories, as we have done in
cases involving community caretaking such as when a warrantless home-entry is the
only way for the police to put an immediate stop to an ongoing nuisance. Rohrig, 98
F.3d at 1519. To conclude that even when police cannot identify any ongoing injury to
the community they may search homes without warrants would not merely go further
than our previous cases, it would contradict Supreme Court precedent. In Welsh v.
Wisconsin, for instance, the Court observed that “an important factor to be considered
when determining whether any exigency exists is the gravity of the underlying offense
for which the arrest [or search] is being made.” 466 U.S. at 753; McDonald v. United
States, 335 U.S. 451, 459 (1948). The purported exigency in Welsh stemmed from the
investigation of a civil traffic offense, which the Court held was of insufficient
importance to overcome the warrant requirement. Here the underlying offense under
Ohio law was criminal trespass—a fourth-degree misdemeanor punishable by a
maximum sentence of thirty days’ imprisonment. O.R.C. § 2911.21; O.R.C. § 2929.24.
While slightly more serious than the offense in Welsh, the government’s interest in
investigating a fourth-degree misdemeanor is still “relatively minor.” Welsh, 466 U.S.
at 750.

          If we were to permit a warrantless home entry under these circumstances, which
were not urgent or life threatening, the effect would certainly undercut making “the
presumption of unreasonableness . . . difficult to rebut.” Ibid. Rather, it would allow
police officers on the scene to cloak themselves in judicial robes even when there is no
immediate and serious consequence to waiting for the approval of a neutral and detached
magistrate. For this reason, we hold that the community caretaker exception does not
provide the government with refuge from the warrant requirement except when delay is
reasonably likely to result in injury or ongoing harm to the community at large.
No. 08-3317        United States v. Washington                                   Page 14


                                          IV

       The district court did not err in granting defendant’s motion to suppress evidence
obtained in the search of his uncle’s apartment. Here, a police officer engaged in a
warrantless search of an apartment after unreasonably concluding that an exigency
existed. Cf. Herring v. United States, 129 S. Ct. 695, 704 (2009) (admitting evidence
obtained from an unreasonable search by an officer acting in good-faith reliance on
erroneous information provided by another law enforcement agency that negligently
maintained its records); Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990) (admitting
evidence obtained from a search based on the consent of a third party with apparent
authority over the property); Illinois v. Krull, 480 U.S. 340, 349-50 (1987) (admitting
evidence obtained from warrantless administrative searches performed in good-faith
reliance of a statute later declared unconstitutional). No exception to the exclusionary
rule covers the case where the police officer’s own conclusion was unreasonable.

                                           V

       For these reasons, we AFFIRM the district court’s order.
