           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2     United States v.                Nos. 02-5001/5002/5003
        ELECTRONIC CITATION: 2003 FED App. 0317P (6th Cir.)                   Williams, et al.
                    File Name: 03a0317p.06
                                                                                             _________________
UNITED STATES COURT OF APPEALS                                                                    COUNSEL
                  FOR THE SIXTH CIRCUIT                                 ARGUED: T. Clifton Harviel, Jr., HARVIEL LAW
                    _________________                                   OFFICE, Memphis, Tennessee, Kim A. Tollison, FEDERAL
                                                                        DEFENDER SERVICES, Knoxville, Tennessee, Richard L.
 UNITED STATES OF AMERICA , X                                           Gaines, ELDRIDGE, IRVINE & GAINES, Knoxville,
             Plaintiff-Appellee, -                                      Tennessee, for Appellants.     David P. Folmar, Jr.,
                                   -                                    ASSISTANT UNITED STATES ATTORNEY, Knoxville,
                                   -   Nos. 02-5001/                    Tennessee, for Appellee. ON BRIEF: T. Clifton Harviel,
            v.                     -   5002/5003                        Jr., HARVIEL LAW OFFICE, Memphis, Tennessee, Kim A.
                                    >                                   Tollison, FEDERAL DEFENDER SERVICES, Knoxville,
                                   ,
 HUNTER LEE WILLIAMS               -                                    Tennessee, Richard L. Gaines, ELDRIDGE, IRVINE &
 (02-5001); NICHOLAS               -                                    GAINES, Knoxville, Tennessee, Charles W. B. Fels,
 EDWARD GEORGE (02-5002);          -                                    RITCHIE, FELS & DILLARD, Knoxville, Tennessee, for
                                   -                                    Appellants. David P. Folmar, Jr., ASSISTANT UNITED
 and GEOFFREY HILLMAN                                                   STATES ATTORNEY, Knoxville, Tennessee, for Appellee.
 LEEK (02-5003),                   -
        Defendants-Appellants. -                                                             _________________
                                   -
                                  N                                                              OPINION
       Appeal from the United States District Court                                          _________________
    for the Eastern District of Tennessee at Knoxville.
      No. 00-00045—James H. Jarvis, District Judge.                       R. GUY COLE, JR., Circuit Judge. Defendants appeal the
                                                                        district court’s denial of their motions to suppress the fruits of
                    Argued: August 7, 2003                              a warrantless entry and search by federal agents of a rental
                                                                        property in Knoxville, Tennessee. After the owner of the
            Decided and Filed: September 4, 2003                        property became concerned about a water leak, she entered
                                                                        the residence and became suspicious of criminal activity. She
   Before: KEITH and COLE, Circuit Judges; WEBER,                       notified federal authorities, who then accompanied the
                   District Judge.*                                     woman into the rental property. This entry led to the
                                                                        discovery of a hydroponic marijuana-growing operation,
                                                                        searches of two other residences, and the arrests of
                                                                        Defendants.       The district court denied Defendants’
                                                                        suppression motions, finding that exigent circumstances–the
    *                                                                   possible water leak–justified the warrantless entry. For the
     The Hono rable Herman J. Weber, United States District Judge for   reasons stated below, we REVERSE the district court’s denial
the Southern District of Ohio, sitting by designation.

                                 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’ motions and REMAND for further                         Around 10:30 a.m. on October 22, Smith and Barnett
proceedings.                                                       arrived at the Bluegrass residence. Although the gate was
                                                                   open, Leek, George, and the dog were not at the residence.
                    I. BACKGROUND                                  Smith used a copy of the house key to enter the Bluegrass
                                                                   residence. As she and Barnett entered, Smith smelled
  The charges against Defendants Geoffrey Hillman Leek,            something odd. Smith and Barnett saw leaves all over the
Nicholas Edward George, and Hunter Lee Williams arise out          floor, and no furniture in the residence save a punching bag
of a warrantless entry by federal agents into a residence at       and trash cans. Soft music was playing. The pair walked
10223 Bluegrass Road, Knoxville, Tennessee (the “Bluegrass         through the living room and inspected the kitchen, finding no
residence”) on October 22, 1999. The owner of this property,       leaks. Although they saw no leaks nor any water or water
Theresa Smith, leased the residence to Leek and George.            damage, they left without checking the entire residence
Smith, an elderly widow who owns seven rental properties in        because it was dark, the lights did not work, and they were
the Knoxville area, testified that she had no complaints about     afraid.
Leek or George, and that Leek always paid the rent, $850.00
per month, on time and in cash. Under the lease, Smith was           After they left, Barnett called the Drug Enforcement
responsible for the water bill.                                    Agency (“DEA”). Barnett explained to DEA Agent Tim Teal
                                                                   that Smith had received a high water bill for several rental
  On October 7, 1999, Smith received a bill for the combined       properties that she owned, including the Bluegrass residence.
water usage at four of her rental properties—the Bluegrass         She explained that she had accompanied her aunt to the
residence, a modular home, a trailer, and a camper. On             Bluegrass residence to look for leaks, and based on the plant
October 22, 1999, when Smith prepared to pay the bill, she         material and lack of light and furniture in the residence, they
concluded that it was higher than normal. Specifically, Smith      suspected drug activity. Barnett also informed Teal that Leek
testified that the October 7 bill totaled $39.16, while the bill   always paid the rent in cash. Based on this information,
for the previous month totaled $27.86. Notably, the                Agent Teal suspected that the residence was either a
November 1999 bill totaled $46.41 and Smith testified that a       “[m]arijuana grow or marijuana stash house, one or the
bill of nearly forty dollars was not unusual. However, Smith       other.” Agent Teal agreed to meet with the women at the
claimed that a bill of nearly forty dollars was odd for the        Bluegrass residence at 1:00 p.m. that day.
period measured in the October 7 bill because two of the
residences were vacant.                                              Agent Teal asked DEA Agent David Henderson, who was
                                                                   also employed by the Knox County Sheriff’s Department, to
   Approximately five years earlier, a water leak in the kitchen   accompany him. When they arrived at the Bluegrass
caused damage to the Bluegrass residence. Thus, suspecting         residence at 1:20 p.m., the women explained that Smith
a possible water leak, Smith set out to inspect each of the four   owned the Bluegrass residence, but rented it to Leek and
properties. Smith did not call any of her tenants in advance.      George. Reiterating some of the information that Barnett had
Smith inspected the modular home, trailer, and camper, but         relayed to Agent Teal on the telephone, Smith and Barnett
found no leaks. Fearing a dog that Leek and George owned,          showed the agents the lease, described the water bill, and
Smith asked her niece, Lucille Barnett, to accompany her to        explained that they had checked the three other rental
inspect the Bluegrass residence.                                   properties for a leak already.
Nos. 02-5001/5002/5003                        United States v.         5    6    United States v.               Nos. 02-5001/5002/5003
                                              Williams, et al.                   Williams, et al.

  Concerned that a possible water leak might ruin the new                   entry into the Bluegrass residence. Relying on this
carpeting in the Bluegrass residence, Smith and Barnett                     information, Agent Henderson applied for and obtained a
initially asked the officers to inspect the premises for a leak.            search warrant for the Bluegrass residence the same day.
The agents declined to enter the residence alone because they               Meanwhile, Agent Teal learned that: Leek subscribed to
“both agreed that [they] shouldn’t do that.” Smith then asked               electrical service for the Bluegrass residence, listed 305
the agents to accompany her into the Bluegrass residence to                 Meridale Drive in Johnson City, Tennessee (the “Meridale
check for a leak, telling them that she was afraid to go in by              residence”) as his address on his driver’s licence, but had a
herself. After discussing whether they could accompany                      vehicle registered at 1311 Clinch Avenue, Apartment Three
Smith into the residence, the agents decided that Agent                     in Knoxville (the “Clinch residence”). Agent Teal also
Henderson would go with Smith in his capacity as a local law                learned that George’s driver’s license listed the Clinch
enforcement officer, rather than as a federal drug                          residence as his address, but George had a vehicle registered
investigator.1 Agent Teal testified, however, that he had no                at the Meridale residence. Finally, Agent Teal learned that
“real reason” to believe that anyone was in the residence.                  Leek and George receive mail at the Clinch residence.
   Smith unlocked the door to the residence, and Agent                        Agents Teal and Henderson executed the search warrant for
Henderson accompanied her and Barnett inside. Barnett                       the Bluegrass residence at 10:30 p.m. on October 22, 1999.
reemerged from the residence a few minutes later to get a                   The agents discovered a hydroponic marijuana-growing
flashlight from Agent Teal for Agent Henderson. Agent                       operation, including 164 marijuana plants. On October 26,
Henderson inspected the entire house, including the room                    1999, after observing Leek’s vehicle parked outside, the
containing a washer and dryer, the master bedroom, the                      officers knocked on the door of the Clinch residence to arrest
bathrooms, and the kitchen—even looking under the kitchen                   him. Upon arrest, Leek consented to a search of the Clinch
sink. Agent Henderson did not find a water leak, but he did                 residence. During the search, the agents recovered marijuana,
discover many marijuana plants.                                             drug paraphernalia, opium, and sixteen hundred dollars in
                                                                            cash. During the course of this arrest, Leek made various
  Based on Agent Henderson’s discovery of marijuana during                  incriminating statements to the agents. Based on the search
the warrantless entry into the Bluegrass residence, the agents              of the Clinch residence, the agents decided to focus on the
established surveillance there. Later in the day, Agent                     Meridale residence. Thus, police officers from Johnson City,
Henderson obtained state arrest warrants for Leek and                       Tennessee, acting on information provided by Agents Teal
George. The affidavit for these warrants was based entirely                 and Henderson, eventually executed the arrest warrant for
on information obtained from Agent Henderson’s warrantless                  George at the Meridale residence. The officers did not locate
                                                                            George in the residence, but they did see marijuana, and they
                                                                            arrested Hunter Williams, who was present there. The
    1                                                                       officers later sought and obtained a search warrant for the
      Agent Henderson testified that the Sheriff’s Department guidelines
permitted him to enter the residence with Smith, to “protect her.” As the   Meridale residence. Upon executing that search warrant, the
district court observed, “These guidelines were never introduced into the   officers recovered 295 marijuana plants, approximately eighty
record. W hether or no r the Sheriff’s Departm ent has ‘guidelines’         bundles of marijuana leaves, and implements used for
allowing deputies to enter homes in certain circumstances has no legal
significance on the constitutionality of the warrantless entry into th[e]   growing marijuana, such as lights and a carbon dioxide
[Bluegrass] residence.”                                                     enrichment system.
Nos. 02-5001/5002/5003                   United States v.     7    8    United States v.                Nos. 02-5001/5002/5003
                                         Williams, et al.               Williams, et al.

  On March 8, 2000, Defendants Leek, George, and                                           II. ANALYSIS
Williams, were charged in a five-count indictment
(“Indictment”) with conspiring to manufacture marijuana and          As the district court concluded, if the warrantless entry into
to possess with intent to distribute marijuana in violation of     the Bluegrass residence was unconstitutional, all subsequent
21 U.S.C. §§ 841(a)(1) and 846, and aiding and abetting each       evidence was obtained unlawfully because the subsequent
other in the commission of these offenses. Subsequently,           searches and arrest warrants were based on evidence and
Defendants filed motions to suppress the evidence against          information derived solely from Agent Henderson’s
them on the grounds that the warrantless entry into the            warrantless entry. Thus, our primary task is to assess whether
Bluegrass residence was not justified. The Government              the warrantless entry into the Bluegrass residence was
opposed the motions.                                               constitutional.

  After a hearing, a magistrate judge issued a Report and          A. Warrantless Entry into the Bluegrass Residence
Recommendation, concluding that exigent circumstances
justified the warrantless entry into the Bluegrass residence         The district court held that the warrantless entry into the
and recommending denial of Defendants’ motions. Upon               Bluegrass Residence was justified by exigent circumstances.
review, the district court explained: “The only issue presented    Specifically, the district court found that Agent Henderson
for review is whether Agent Henderson’s initial warrantless        did not contravene the dictates of the Fourth Amendment
entry into the Bluegrass Road residence was based on exigent       when he accompanied, for her protection, “a very typical East
circumstances under United States v. Rohrig, 98 F.3d 1506          Tennessee ‘country woman,’ who was insistent upon entering
(6th Cir. 1996).” Agreeing with the magistrate judge that the      her residence ‘come hell or high water,’” to look for a water
search was permissible under Rohrig, the district court            leak in the darkened residence. On appeal, Defendants claim
adopted the findings of the magistrate judge and denied            there was no exigency to justify the entry and, therefore, the
Defendants’ motions to suppress.                                   agents should have sought a warrant. When reviewing a
                                                                   district court’s decision to deny a motion to suppress, we
  In April 2001, Defendants George and Leek pled guilty to         review the district court’s legal conclusions de novo and
Count One of the Indictment, which alleged a conspiracy to         disturb its factual findings only if they are clearly erroneous.
manufacture, possess, and distribute one hundred or more           United States v. Bates, 84 F.3d 790, 794 (6th Cir. 1996).
marijuana plants, and Williams pled guilty to Count Five,
which alleged aiding and abetting the possession with intent         The Fourth Amendment provides that: “The right of the
to distribute marijuana. On December 17, 2001, the district        people to be secure in their persons, houses, papers, and
court sentenced George and Leek each to serve eighteen             effects, against unreasonable searches and seizures, shall not
months of imprisonment to be followed by three years of            be violated and no Warrants shall issue, but upon probable
supervised release. The same day, the district court sentenced     cause, supported by Oath or affirmation, and particularly
Williams to serve fifteen months of imprisonment to be             describing the place to be searched, and the persons or things
followed by three years of supervised release. Defendants          to be seized.” U.S. CONST . amend IV. The “chief evil”
specifically reserved their rights to appeal the denial of their   against which the Fourth Amendment protects is the “physical
suppression motions and now appeal such denial.                    entry of the home.” Payton v. New York, 445 U.S. 573, 585
                                                                   (1980). The Fourth Amendment requires that searches of the
Nos. 02-5001/5002/5003                 United States v.     9    10   United States v.                Nos. 02-5001/5002/5003
                                       Williams, et al.               Williams, et al.

home be reasonable. See Illinois v. Rodriguez, 497 U.S. 177,     prevent a suspect’s escape; and (4) a risk of danger to the
185-86 (1990). This reasonableness requirement generally         police or others.” United States v. Johnson, 22 F.3d 674, 680
requires police to obtain a warrant based upon a judicial        (6th Cir. 1994) (internal citations omitted); see Minnesota v.
determination of probable cause prior to entering a home. See    Olsen, 495 U.S. 91, 100 (1990).
Payton, 445 U.S. at 585-86. The Fourth Amendment
prohibition against entering a home without a warrant applies       Of these potential exigencies, we must determine whether
equally whether the police enter a home to conduct a search      the “risk of danger” exigency applies under the circumstances
or seizure or for some other purpose. See Rohrig, 98 F.3d at     of this case. As the Supreme Court has explained, “[T]he
1511-12. In the present case, because no warrant was             Fourth Amendment does not bar police officers from making
obtained before Agent Henderson entered the Bluegrass            warrantless entries and searches when they reasonably believe
residence with Smith and Barnett on October 22, 1999, the        that a person within is in need of immediate aid.” Mincey,
Government must overcome the presumption that the entry          437 U.S. at 392. The “‘risk of danger’ exigency” most
was unreasonable. See Ewolski v. City of Brunswick, 287          frequently justifies “warrantless entries in cases where the
F.3d 492, 501 (6th Cir. 2002) (citing O’Brien v. City of Grand   Government is acting in something other than a traditional
Rapids, 23 F.3d 990, 996 (6th Cir. 1994)).                       law enforcement capacity.” Rohrig, 98 F.3d at 1515; see,
                                                                 e.g., Michigan v. Tyler, 436 U.S. 499, 509 (1978) (holding
   There are a few well-defined and carefully circumscribed      warrantless entry into a burning building justified); see also
circumstances in which a warrant will not be required. See       Johnson, 22 F.3d at 680 (holding limited warrantless entry to
Mincey v. Arizona, 437 U.S. 385, 390 (1978) (discussing          free a victim who had been held against her will and sexually
exceptions to the warrant requirement); see also United States   assaulted justified).
v. Haddix, 239 F.3d 766, 767 n.2 (6th Cir. 2001) (same). As
noted above, the district court found that the “exigent            Because we find that Agent Henderson was neither faced
circumstances” exception to the warrant requirement justified    with any true immediacy, nor confronted by any real danger
Agent Henderson’s entry into the Bluegrass residence.            that serious consequences would certainly occur to the police
                                                                 or others if he did not enter the Bluegrass residence, we
  1. Exigent Circumstances                                       conclude that exigent circumstances, in particular, the “risk of
                                                                 danger” exigency cannot justify Agent Henderson’s
   Exigent circumstances are situations where “‘real             warrantless entry. First, it is clear that time was not of the
immediate and serious consequences’” will “certainly occur”      essence in attending to the possible water leak at the
if a police officer postpones action to obtain a warrant.”       Bluegrass residence. In fact, the Government conceded at
Ewolski, 287 F.3d at 501 (quoting O’Brien, 23 F.3d at 997        oral argument that there was no immediacy involved here.
(quoting Welsh v. Wisconsin, 466 U.S. 740, 751 (1984))); see     Specifically, the Government represented that the agents
Thacker v. City of Columbus, 328 F.3d 244, 253 (6th Cir.         could have pursued alternative courses of action, such as
2003). “The government bears the burden of proving [that]        impounding the residence and seeking a warrant, rather than
exigent circumstances existed.” Bates, 84 F.3d at 794. This      entering the home without a warrant. We agree. Smith had
Court has explained that the following situations may give       waited two weeks after receiving the October 7 water bill
rise to exigent circumstances: “(1) hot pursuit of a fleeing     before opening it on October 22 and concluding that there
felon; (2) imminent destruction of evidence; (3) the need to     might be a leak. At that time, she suspected a leak and set out
Nos. 02-5001/5002/5003                  United States v.    11    12    United States v.                Nos. 02-5001/5002/5003
                                        Williams, et al.                Williams, et al.

to inspect for it. On October 22, the water could have been       Agent Henderson was unable to prevent Smith from entering
leaking for the four weeks covered by the bill, as well as the    the residence. Insofar as Agent Henderson permitted Smith
two weeks during which she did nothing after receiving the        to enter the home, he essentially created the dangerous
bill. Any damage would likely have been done, or at least         situation himself.      Law enforcement officers cannot
noticeable, by October 22. However, Smith did not rush to         manufacture exigent circumstances. Ewolski, 287 F.3d at 504
the Bluegrass residence after finding no leak in any of the       (quoting United States v. Morgan, 743 F.2d 1158, 1163 (6th
other three rental properties. Instead, she went to get Barnett   Cir. 1984), for the proposition that “[p]olice officials . . . are
before going into the residence. Although Smith and Barnett       not free to create exigent circumstances to justify their
did not check the entire residence when they entered at 10:30     warrantless intrusions.”). Accordingly, we find that any
a.m., they did not see a leak or evidence of water damage.        danger to human life or limb, that is, to Smith or to the agents
                                                                  themselves, was the result of their own doing and cannot,
   Instead of calling an emergency plumber or 911, Smith and      therefore, justify the warrantless entry into the Bluegrass
Barnett made an appointment to meet with Agents Henderson         residence.
and Teal concerning the possible water leak and their
suspicion of drug activity. The officers stopped for lunch on        Third, other than the danger created by the agents, there
the way to the residence, and arrived late. In fact, Agent Teal   was no “risk of danger” as that term is used in Fourth
testified that he was not in a hurry to get to the residence.     Amendment jurisprudence because the potential danger was
Thus, Smith had willingly waited nearly three hours before        merely the risk of damage to property and such risk was, at
Agents Henderson and Teal arrived at 1:20 p.m. Even if a          best, speculative. Danger of water damage to a carpet is
water leak that could potentially cause damage to a new           certainly not urgent within the meaning of the “risk of
carpet could be considered an emergency, the additional time      danger” exigency. Precedent is clear that the “risk of danger”
it would have taken to obtain a search warrant was marginal       exigency applies only to situations involving the “need to
under the circumstances of this case. Significant time had        protect or preserve life or avoid serious injury either of police
already passed without any drastic consequences stemming          officers themselves or of others.” O’Brien, 23 F.3d at 997
from the possible, but far from certain, leak in the Bluegrass    (citing Mincey, 437 U.S. at 392); see Mincey, 437 U.S. at 392
residence.                                                        (explaining that a prompt warrantless entry into a home where
                                                                  a homicide just took place “to see if there are other victims or
  Second, any “risk of danger” to “the police or others” was      if a killer is still on the premises” is permissible under the
created by the agents when they permitted Smith to reenter        Fourth Amendment, but that a four-day search of that home
the Bluegrass residence. The officers testified that they         was unreasonable because there was no “emergency
entered the Bluegrass residence to protect Smith, who insisted    threatening life or limb”). Our decision in Johnson offers
on entering the residence. The agents did not believe anyone      some clarity regarding the limits on the “risk of danger”
inside the Bluegrass residence was in need of aid. Rather, the    exigency. There, we explained that a limited warrantless
agents were with Smith, who was safe outside the residence,       entry by police officers responding to a call that a minor was
but who insisted on going inside to search for a possible water   being held in a closet in the apartment against her will was
leak. Thus, despite Smith’s subjective belief that she needed     justified to free the minor who had been sexually assaulted.
to inspect the Bluegrass residence quickly, she was not in        Johnson, 22 F.3d at 680. However, we concluded that
need of immediate aid. Nothing in the record suggests that        exigent circumstances did not justify the officers’ seizure of
Nos. 02-5001/5002/5003                   United States v.    13    14   United States v.               Nos. 02-5001/5002/5003
                                         Williams, et al.               Williams, et al.

firearms found in the closet without a warrant because once        suspect was going nowhere if he came out of the house [as]
the officers had freed the minor, “the police had ample time       he would have been promptly apprehended”). Agent
to secure the premises and to obtain a search warrant.” Id.        Henderson never even attempted to set in motion the chain of
                                                                   events suggested by the Government attorney at oral
   Agent Teal testified that he did not believe that there was     argument.
any emergency at the Bluegrass residence. Further, Agent
Teal testified that he had no “real reason” to believe that          After Agent Henderson completed the warrantless entry
anyone was in the residence. Certainly, the officers had no        into the Bluegrass residence, the agents established
information that suggested that Leek, George, or the dog was       surveillance of the residence before seeking and securing a
inside the residence. Moreover, Smith and Barnett had been         warrant. George and Leek did not return to the residence in
in the residence earlier in the day; although they were afraid     the interim. However, if they had returned, the agents could
for their safety, there was nothing that suggested they were       have impounded the residence and prohibited George and
actually in danger. Moreover, the possibility of significant       Leek from entering until the necessary warrants were secured.
water damage in the Bluegrass residence was speculative, at        See Illinois v. McArthur, 531 U.S. 326, 331 (2001) (holding
best, given that Smith saw no evidence of damage when she          that police impoundment of residence that restrained
entered the residence earlier in the day. Thus, it is clear that   defendant from entering until warrant could be obtained was
this case does not involve a “risk of danger to the police or      proper). We find it clear, based, in particular, upon the
others,” O’Brien, 23 F.3d at 997, other than the danger, if any,   Government’s concession at oral argument that alternative
created by the DEA agents themselves. Thus, there is nothing       courses of action were available to the officers, that no “real
to suggest that Agent Henderson was faced with a danger that       immediate and serious consequences” would “certainly
he could not address after obtaining a warrant. See Johnson,       occur” by the failure to enter the Bluegrass residence.
22 F.3d at 680.
                                                                      Nevertheless, the district court, relying on this Court’s
   Moreover, it is clear that securing a warrant in this case      decision in Rohrig, concluded that exigent circumstances
would not have presented any significant problem. At oral          existed. In Rohrig, a divided panel of this Court held that a
argument, the Government conceded that there were                  warrantless entry into a private home was justified under the
alternatives available to the agents and that they did not need    “exigent circumstances” exception to the warrant requirement
to enter the Bluegrass residence without a warrant. In fact,       by the need to quell a loud noise emanating from a private
the attorney for the Government represented that, had the          home that bothered neighbors late at night. 98 F.3d at 1522.
agents secured the residence and called him, he would have         In Rohrig, local police officers responded to a complaint that
obtained a warrant for them in short order. The availability       loud noise was coming from the residence after 1:30 in the
of alternatives demonstrates that the immediacy required by        morning. Id. at 1509. While a cadre of angry, “pajama-clad”
our “exigent circumstances” jurisprudence was not present          neighbors looked on, the officers walked around the home,
here. Cf. Olsen, 495 U.S. at 100 (holding exigent                  knocking on the front door and first-floor windows. Id.
circumstances did not justify warrantless entry into apartment     Through a window, the officers observed speakers on the first
where robbery suspect was known to be holed up because the         floor and speaker wires on the outside of the residence. Id.
police had surrounded the apartment, there was no suggestion       Because the back door was unlocked and open, although there
of danger to those inside with him, and “it was evident the        was a closed screen door, the officers entered through the rear
Nos. 02-5001/5002/5003                   United States v.     15    16   United States v.               Nos. 02-5001/5002/5003
                                         Williams, et al.                Williams, et al.

of the house. Continuing to announce their presence, the              We wish to emphasize the fact-specific nature of [our]
officers walked into the kitchen, around the first floor, into        holding. By this decision, we do not mean to fashion a
the basement, where they discovered marijuana growing, and,           broad “nuisance abatement” exception to the general rule
finally, to the second floor where they discovered the stereo         that warrantless entries into private homes are
as well as the defendant, who was passed out on the floor. Id.        presumptively unreasonable. We simply find that, in
                                                                      some cases, it would serve no Fourth Amendment
  The Rohrig Court concluded that “none of the traditionally          purpose to require that the police obtain a warrant before
recognized exigent circumstances [wa]s squarely presented             taking reasonable steps to abate an immediate, ongoing,
under the facts of th[at] case.” Id. at 1519. Instead, the            and highly objectionable nuisance, and we conclude that
Rohrig Court admittedly “fashioned a new exigency that                this is just such a case.
justifies warrantless entry” for “an ongoing [late night] breach
of the peace” based on the following three considerations           Id. at 1525 n.11. This statement makes clear that the Rohrig
culled from the Supreme Court’s Fourth Amendment                    Court did not intend for its decision to have broad
jurisprudence.                                                      applicability. Thus, because we find the present case
                                                                    materially distinguishable from Rohrig and because we
  [O]ur review of the precedent governing our “exigent              adhere to that panel’s suggestion that its decision should not
  circumstances” inquiry reveals that three considerations          be extended beyond the facts of that case, we find that Rohrig
  play key roles. First, we must ask whether the                    is not controlling here.
  Government has demonstrated a need for immediate
  action that would have been defeated if the . . . police             Rohrig involved an “immediate, ongoing, and highly
  officers had taken the time to secure a warrant. Next, we         objectionable nuisance,” while this case involves no nuisance
  must identify the governmental interest being served by           at all. The possible water leak in this case posed no threat or
  the officers’ entry into Defendants’ home, and ask                nuisance to any member of the public. Rather, the agents in
  whether that interest is sufficiently important to justify a      this case were concerned with protecting one woman while
  warrantless entry.       Finally, we must weigh this              she abated potential damage to her carpet. Despite Smith’s
  governmental interest against Defendant’s interest in             speculative concerns, there is no immediacy in this case.
  maintaining the privacy of his home, and ask whether
  Defendant’s conduct somehow diminished the reasonable               Moreover, in Rohrig, time was “of the essence.” Id. at
  expectation of privacy he would normally enjoy.                   1521. There, the officers were confronted with a loud noise,
                                                                    which could be heard from a block away. Unable to sleep,
Id. at 1518. At the time, this approach was unprecedented in        angry neighbors sought the immediate assistance of the
this circuit.                                                       police. Were the officers to seek a warrant, the noise would
                                                                    have “continued unabated for a significant period of time.” Id.
   The Rohrig Court explained its decision as “fact-specific,”      In contrast, in this case, time was hardly of the essence in
suggesting that the decision should not have broad application      abating the possible water leak. The agents in this case were
to significantly different fact patterns. Specifically, the Court   not called to the Bluegrass residence in the middle of the
stated:                                                             night by frantic neighbors. Rather, as noted previously, Smith
                                                                    and Barnett made an appointment to meet with them
Nos. 02-5001/5002/5003                  United States v.    17    18   United States v.               Nos. 02-5001/5002/5003
                                        Williams, et al.               Williams, et al.

concerning the possible water leak and their suspicion of drug    caretakers, id. at 1523, it is not clear that the officers were
activity.                                                         acting solely in this capacity here. The community caretaking
                                                                  function of the police cannot apply where, as here, there is
   The Rohrig Court concluded that there was a compelling         significant suspicion of criminal activity. As the Supreme
governmental interest involved there because the police           Court has explained, the community caretaking function of
officers were performing a “community caretaking function”        the police applies only to actions that are “totally divorced
when they sought to abate the nuisance. Acknowledging that        from the detection, investigation, or acquisition of evidence
looking to the severity of the offense committed, as the          relating to the violation of a criminal statute.” See Cady v.
Supreme Court did in Welsh, suggests that no vital                Dombrowski, 413 U.S. 433, 441 (1973). Additionally,
government interest was served by the warrantless entry to        despite references to the doctrine in Rohrig, we doubt that
quell a disturbing noise, the Rohrig court concluded that, “the   community caretaking will generally justify warrantless
Welsh analysis has less relevance as one moves away from          entries into private homes.
traditional law enforcement functions and toward what the
Supreme Court has referred to as ‘community caretaking               Rohrig relied on cases in which a lower federal court and a
functions.’” Rohrig, 98 F.3d at 1521. Rohrig focused,             state supreme court each concluded that water leaking into
however, on the fact that the officers in that case had only a    apartments below sufficiently threatened the safety of the
limited purpose—abating the nuisance—and were not                 inhabitants of neighboring apartments to justify a warrantless
“questioning a subject or searching for evidence of a             intrusion. Id. at 1520 (citing United States v. Boyd, 407 F.
suspected offense.” Id.                                           Supp. 693, 694 (S.D.N.Y. 1976) and State v. Dube, 665 A.2d
                                                                  338, 399 (Me. 1995)). This case, however, is distinguishable
  Here, the agents’ motives in entering were arguably not as      from those situations where the police are informed that there
pure. The agents testified that Agent Henderson entered the       is definitely a water leak and that it is threatening to damage
apartment in his capacity as a member of the local Sheriff’s      not only the apartment where the leak might be found, but
Department and not as a federal agent. However, the agents        also is threatening to harm the apartment – and, importantly,
in this case were called to the Bluegrass residence in their      the neighbors – below. Unlike the situations in Rohrig,
capacity as DEA agents. Smith and Barnett had explained           Boyd, and Dube where the problem the police sought to
over the telephone that they suspected drug activity in the       address was certain, the possible water leak in this case was
house and described the smell and leaves in the residence.        only speculative. Moreover, the danger, if any, in this case
The officers too suspected drug activity prior to the entry.      was to the carpet in the Bluegrass residence only. There was
Thus, although the officers ostensibly entered the home to        no potential for another residence to be damaged or for other
assist Smith, they were also suspicious, if not convinced, that   people to be disturbed by the possible water leak at the
drug-related activity was taking place inside the residence       Bluegrass residence. As the district court concluded,
before they entered without a warrant. Unlike the entry in        protecting Defendants’ interest in maintaining the privacy of
Rohrig, the entry in this case cannot be said to have been        the Bluegrass residence would not diminish their neighbors’
solely related to Agent Henderson’s “community caretaking         interest in maintaining the privacy of their own houses as was
function.” Thus, even if we apply Rohrig’s conclusion that        the case in Rohrig, as well as in Boyd, and Dube. See Rohrig,
the warrant requirement is implicated to a “lesser degree”        98 F.3d at 1522; Boyd, 407 F. Supp. at 694; Dube, 665 A.2d
when police officers act in their roles as community              at 399.
Nos. 02-5001/5002/5003                 United States v.    19    20       United States v.                     Nos. 02-5001/5002/5003
                                       Williams, et al.                   Williams, et al.

   The Government contends that Defendants had a                 an infringement on Defendants’ privacy than did the earlier
diminished interest in maintaining the privacy of the            search by Smith and Barnett. Defendants counter that the
Bluegrass residence because they were not using it as their      private search doctrine does not apply to residences under this
primary residence. Generally, as noted above, the home is        Court’s decision in United States v. Allen, 106 F.3d 695 (6th
sacrosanct. See Payton, 445 U.S. at 585. Although it appears     Cir. 1997).
that Defendants were not using the Bluegrass residence as
their primary abode, we decline to address whether the             Although Tennessee law probably did not permit Smith and
Bluegrass residence was entitled to a lesser degree of Fourth    Barnett to enter the Bluegrass residence,2 Defendants’ Fourth
Amendment protection than a traditional residence because        Amendment rights were not infringed when they did so on
we find that Defendants maintained some significant and          October 22, 1999. The Fourth Amendment is “wholly
legitimate privacy interest in the Bluegrass residence and,      inapplicable ‘to a search or seizure, even an unreasonable one,
under the circumstances of this case, the warrantless entry at   effected by a private individual not acting as an agent of the
issue would not be justified under even the most basic of        Government or with the participation or knowledge of any
Fourth Amendment protections.                                    governmental official.’” See United States v. Jacobsen, 466
                                                                 U.S. 109, 114-15 (1984) (quoting Walter v. United States, 447
   The Supreme Court has emphatically held that the Fourth       U.S. 649, 662 (1980) (Blackmun, J., dissenting)).
Amendment protects “‘the sanctity of a man’s home and the
privacies of life’” from unreasonable government invasions.         In Jacobsen, the Supreme Court held that a private search
Payton, 445 U.S. at 585 (quoting Boyd v. United States, 116      followed by a Government search may be appropriate under
U.S. 616, 630 (1886)). Every citizen has a fundamental right     certain circumstances. Id. at 121. That case involved a
to the protections guaranteed by the Fourth Amendment.           package damaged during shipping by a private shipping
Here, experienced government agents committed an egregious       company, opened by employees of that company, and found
violation of the Fourth Amendment when they failed to obtain     to contain a cocaine-like substance. The Supreme Court held
a warrant prior to entering the Bluegrass residence. The         that no Fourth Amendment violation occurred when the
agents knew that there was absolutely no exigency, and they      company summoned law enforcement officials, who then re-
clearly could have obtained a warrant. What occurred in the      traced the private search. Id. The Court held that “additional
circumstances of this case is precisely what the Fourth          invasions of . . . privacy by [a] government agent [following
Amendment seeks to avoid. We find it clear that the entry
into the Bluegrass residence was not justified by exigent
circumstances. Thus, unless this entry was permissible under          2
the private search doctrine as the Government argues, the              The Blue grass residence lease did not co ntain any provision
                                                                 permitting Smith, as landlord, to enter the residence at will. Tennessee
government clearly violated the Fourth Amendment when it         law perm its a landlord to “enter [a] dwelling unit without consent of the
conducted a warrantless entry into the Bluegrass residence.      tenant in case of emergency,” which is defined as “a sudden, generally
                                                                 unexpected occurrence or set of circum stances demanding imm ediate
  2. Private Search                                              action.” T E N N . C ODE A N N . § 66 -28-4 03(b). Just as we conclude that the
                                                                 pos sible water leak at issue here cannot constitute an “exigent
  Alternatively, the Government argues that the warrantless      circumstance” under the Fourth Amendment, it likewise cannot be a
                                                                 “sudden” circumstance “demanding immediate action” under this
entry was justified as a private search that caused no more of   provision of Tennessee law.
Nos. 02-5001/5002/5003                   United States v.     21    22       United States v.                 Nos. 02-5001/5002/5003
                                         Williams, et al.                    Williams, et al.

on the heels of a private search] must be tested by the degree      justify Agent Henderson’s search. Smith requested that
to which they exceeded the scope of the private search.” Id.        Agent Henderson enter the Bluegrass residence precisely
at 115. Thus, the Government may not exceed the scope of            because she wanted him to complete a broader search than her
the private search unless it has an independent right to search.    search earlier in the day. Earlier, Smith had declined to go
Id. at 121 (“The fact that . . . respondents’ privacy interest in   beyond the living room and kitchen of the Bluegrass
the contents of the package had been largely compromised is         residence because the residence was dark and she feared for
highly relevant to the reasonableness of the agents’ conduct        her safety should George or Leek return. Agent Henderson
. . . .”).                                                          retraced Smith’s steps, but checked under the kitchen sink,
                                                                    where Smith had not looked, and then navigated the rest of
   In Allen, a panel of this Court unequivocally stated: “[T]his    the house with a flashlight, including the bedrooms,
Court is unwilling to extend that holding of Jacobsen to cases      washroom, and bathrooms. Thus, we hold that the
involving private searches of residences.” 106 F.3d at 699.         warrantless entry and search of the Bluegrass residence was
The Government makes much of the fact that the Allen Court          not justified by the private search doctrine. Moreover,
failed to acknowledge dicta in this Court’s earlier decision in     because the warrantless entry into the Bluegrass residence
United States v. Clutter, 914 F.2d 775 (6th Cir. 1990), which       was not justified by exigent circumstances or any other
suggested that the private search doctrine could apply to           exception to the Fourth Amendment’s warrant requirement,
homes. Clutter held that a warrantless search of a home was         the agents should have obtained a warrant.3
justified by a child’s consent because that child was routinely
left in exclusive control of the home that he shared with his       B. Williams’s Fourth Amendment Claims
siblings, mother, and the defendant. Id. at 778. In dicta,
however, the Court also explained that the search was also             The district court stated: “It is undisputed that if Agent
reasonable because, after entering the home with consent, the       Henderson’s first warrantless entry of the Bluegrass residence
officer merely retraced the private search and confirmed the        was unconstitutional, then all subsequent evidence was
fruits of that search. Id. at 779. We now conclude that the         obtained unlawfully because the subsequent search and arrest
Allen Court was not obliged to adhere to the dicta in Clutter       warrants were derived solely from evidence obtained by
and, further, find that the Clutter Court’s failure to make any     Agent Henderson during that entry.” On appeal, the
real distinction between a federal express package and a            Government argues that even if the warrantless entry of the
home, which is entitled to significantly more protection, casts     Bluegrass residence was unconstitutional, Williams lacks
doubt on the alternative holding in that decision.                  standing to challenge the subsequent searches and the “fruit
                                                                    of the poisonous tree” doctrine cannot extend to him.
  However, even assuming that the Bluegrass residence was           Williams concedes that he lacks standing to contest the
not a place of abode because it “contained nothing but
contraband,” we must discern whether Agent Henderson’s
search infringed upon any constitutionally protected privacy             3
interest of Defendants not already frustrated by Smith’s                  Given our findings that Defendants’ constitutional rights were
private search. Because we find that the scope of the               violated by the warrantless entry into the Bluegrass residence on
                                                                    October 22, 1999, we do not have occ asion to add ress Defend ants’ other
Government search necessarily exceeded the scope of the             challenges relating to the searches and arrests tha t stemmed from this
private search, we find that the private search doctrine cannot     warrantless arre st.
Nos. 02-5001/5002/5003                   United States v.     23    24    United States v.               Nos. 02-5001/5002/5003
                                         Williams, et al.                 Williams, et al.

warrantless entry, but counters that the Supreme Court’s            with the unconstitutional warrantless entry into the Bluegrass
decision in Wong Sun v. United States, 371 U.S. 471 (1963),         residence. There was no intervening information, inquiry, or
requires suppression of all evidence obtained as a result of the    surveillance to purge the evidence obtained at the Meridale
information derived from the warrantless entry into the             residence of the taint associated with the illegal entry into the
Bluegrass residence. Under the circumstances presented by           Bluegrass residence. Thus, we conclude that the connection
this case, we agree that the “fruit of the poisonous tree”          between the unlawful entry and the arrest of Williams at the
doctrine extends to the evidence against Williams.                  Meridale residence was not “so attenuated as to dissipate the
                                                                    taint.” Id. at 491.
  The “exclusionary rule” requires, generally, that evidence
seized during an unlawful search cannot be used as proof                                III. CONCLUSION
against the victim of the search. Id. at 484. This prohibition
extends to evidence obtained directly from the unlawful               For the reasons stated above, we REVERSE the decision
invasion as well as that which is indirectly obtained. Id. The      of the district court to deny Defendants’ motions to suppress
Supreme Court explained:                                            and REMAND this case for further proceedings consistent
                                                                    with this opinion.
  [N]ot . . . all evidence is ‘fruit of the poisonous tree’
  simply because it would not have come to light but for
  the illegal actions of the police. Rather, the more apt
  question in such a case is ‘whether, granting the
  establishment of the primary illegality, the evidence to
  which instant objection is made had been come at by
  exploitation of that illegality or instead by means
  sufficiently distinguishable to be purged of the primary
  taint.
Id. at 487-88.
   Here, the Johnson City officers were searching for George
at the Meridale residence when they arrested Williams, who
was present in the Meridale residence at the time. The arrest
warrant for George and the knowledge of the Meridale
residence was obtained solely based on information obtained
during the warrantless entry. In this case, it is clear that “but
for” the illegal warrantless entry of the Bluegrass residence,
the agents would not have obtained evidence against
Williams. Moreover, though, the entry into the Meridale
residence was not “come at” “by means sufficiently
distinguishable to be purged of the primary taint” associated
