United States of America v. Hunter Lee Williams (02-5001)

*The Hono rable Herman J. Weber, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0317P (6th Cir.)
File Name: 03a0317p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HUNTER LEE WILLIAMS
(02-5001); NICHOLAS
EDWARD GEORGE (02-5002);
and GEOFFREY HILLMAN
LEEK (02-5003),
Defendants-Appellants.
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Nos. 02-5001/
5002/5003
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 00-00045—James H. Jarvis, District Judge.
Argued: August 7, 2003
Decided and Filed: September 4, 2003
Before: KEITH and COLE, Circuit Judges; WEBER,
District Judge.*
2 United States v.
Williams, et al.
Nos. 02-5001/5002/5003
_________________
COUNSEL
ARGUED: T. Clifton Harviel, Jr., HARVIEL LAW
OFFICE, Memphis, Tennessee, Kim A. Tollison, FEDERAL
DEFENDER SERVICES, Knoxville, Tennessee, Richard L.
Gaines, ELDRIDGE, IRVINE & GAINES, Knoxville,
Tennessee, for Appellants. David P. Folmar, Jr.,
ASSISTANT UNITED STATES ATTORNEY, Knoxville,
Tennessee, for Appellee. ON BRIEF: T. Clifton Harviel,
Jr., HARVIEL LAW OFFICE, Memphis, Tennessee, Kim A.
Tollison, FEDERAL DEFENDER SERVICES, Knoxville,
Tennessee, Richard L. Gaines, ELDRIDGE, IRVINE &
GAINES, Knoxville, Tennessee, Charles W. B. Fels,
RITCHIE, FELS & DILLARD, Knoxville, Tennessee, for
Appellants. David P. Folmar, Jr., ASSISTANT UNITED
STATES ATTORNEY, Knoxville, Tennessee, for Appellee.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. Defendants appeal the
district court’s denial of their motions to suppress the fruits of
a warrantless entry and search by federal agents of a rental
property in Knoxville, Tennessee. After the owner of the
property became concerned about a water leak, she entered
the residence and became suspicious of criminal activity. She
notified federal authorities, who then accompanied the
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
reasons stated below, we REVERSE the district court’s denial

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

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1Agent Henderson testified that the Sheriff’s Department guidelines
permitted him to enter the residence with Smith, to “protect her.” As the
district court observed, “These guidelines were never introduced into the
record. W hether or nor the Sheriff’s Departm ent has ‘guidelines’
allowing deputies to enter homes in certain circumstances has no legal
significance on the constitutionality of the warrantless entry into th[e]
[Bluegrass] residence.”
Concerned that a possible water leak might ruin the new
carpeting in the Bluegrass residence, Smith and Barnett
initially asked the officers to inspect the premises for a leak.
The agents declined to enter the residence alone because they
“both agreed that [they] shouldn’t do that.” Smith then asked
the agents to accompany her into the Bluegrass residence to
check for a leak, telling them that she was afraid to go in by
herself. After discussing whether they could accompany
Smith into the residence, the agents decided that Agent
Henderson would go with Smith in his capacity as a local law
enforcement officer, rather than as a federal drug
investigator.1 Agent Teal testified, however, that he had no
“real reason” to believe that anyone was in the residence.
Smith unlocked the door to the residence, and Agent
Henderson accompanied her and Barnett inside. Barnett
reemerged from the residence a few minutes later to get a
flashlight from Agent Teal for Agent Henderson. Agent
Henderson inspected the entire house, including the room
containing a washer and dryer, the master bedroom, the
bathrooms, and the kitchen—even looking under the kitchen
sink. Agent Henderson did not find a water leak, but he did
discover many marijuana plants.
Based on Agent Henderson’s discovery of marijuana during
the warrantless entry into the Bluegrass residence, the agents
established surveillance there. Later in the day, Agent
Henderson obtained state arrest warrants for Leek and
George. The affidavit for these warrants was based entirely
on information obtained from Agent Henderson’s warrantless
6 United States v.
Williams, et al.
Nos. 02-5001/5002/5003
entry into the Bluegrass residence. Relying on this
information, Agent Henderson applied for and obtained a
search warrant for the Bluegrass residence the same day.
Meanwhile, Agent Teal learned that: Leek subscribed to
electrical service for the Bluegrass residence, listed 305
Meridale Drive in Johnson City, Tennessee (the “Meridale
residence”) as his address on his driver’s licence, but had a
vehicle registered at 1311 Clinch Avenue, Apartment Three
in Knoxville (the “Clinch residence”). Agent Teal also
learned that George’s driver’s license listed the Clinch
residence as his address, but George had a vehicle registered
at the Meridale residence. Finally, Agent Teal learned that
Leek and George receive mail at the Clinch residence.
Agents Teal and Henderson executed the search warrant for
the Bluegrass residence at 10:30 p.m. on October 22, 1999.
The agents discovered a hydroponic marijuana-growing
operation, including 164 marijuana plants. On October 26,
1999, after observing Leek’s vehicle parked outside, the
officers knocked on the door of the Clinch residence to arrest
him. Upon arrest, Leek consented to a search of the Clinch
residence. During the search, the agents recovered marijuana,
drug paraphernalia, opium, and sixteen hundred dollars in
cash. During the course of this arrest, Leek made various
incriminating statements to the agents. Based on the search
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
and Henderson, eventually executed the arrest warrant for
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
officers later sought and obtained a search warrant for the
Meridale residence. Upon executing that search warrant, the
officers recovered 295 marijuana plants, approximately eighty
bundles of marijuana leaves, and implements used for
growing marijuana, such as lights and a carbon dioxide
enrichment system.

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On March 8, 2000, Defendants Leek, George, and
Williams, were charged in a five-count indictment
(“Indictment”) with conspiring to manufacture marijuana and
to possess with intent to distribute marijuana in violation of
21 U.S.C. §§ 841(a)(1) and 846, and aiding and abetting each
other in the commission of these offenses. Subsequently,
Defendants filed motions to suppress the evidence against
them on the grounds that the warrantless entry into the
Bluegrass residence was not justified. The Government
opposed the motions.
After a hearing, a magistrate judge issued a Report and
Recommendation, concluding that exigent circumstances
justified the warrantless entry into the Bluegrass residence
and recommending denial of Defendants’ motions. Upon
review, the district court explained: “The only issue presented
for review is whether Agent Henderson’s initial warrantless
entry into the Bluegrass Road residence was based on exigent
circumstances under United States v. Rohrig, 98 F.3d 1506
(6th Cir. 1996).” Agreeing with the magistrate judge that the
search was permissible under Rohrig, the district court
adopted the findings of the magistrate judge and denied
Defendants’ motions to suppress.
In April 2001, Defendants George and Leek pled guilty to
Count One of the Indictment, which alleged a conspiracy to
manufacture, possess, and distribute one hundred or more
marijuana plants, and Williams pled guilty to Count Five,
which alleged aiding and abetting the possession with intent
to distribute marijuana. On December 17, 2001, the district
court sentenced George and Leek each to serve eighteen
months of imprisonment to be followed by three years of
supervised release. The same day, the district court sentenced
Williams to serve fifteen months of imprisonment to be
followed by three years of supervised release. Defendants
specifically reserved their rights to appeal the denial of their
suppression motions and now appeal such denial.
8 United States v.
Williams, et al.
Nos. 02-5001/5002/5003
II. ANALYSIS
As the district court concluded, if the warrantless entry into
the Bluegrass residence was unconstitutional, all subsequent
evidence was obtained unlawfully because the subsequent
searches and arrest warrants were based on evidence and
information derived solely from Agent Henderson’s
warrantless entry. Thus, our primary task is to assess whether
the warrantless entry into the Bluegrass residence was
constitutional.
A. Warrantless Entry into the Bluegrass Residence
The district court held that the warrantless entry into the
Bluegrass Residence was justified by exigent circumstances.
Specifically, the district court found that Agent Henderson
did not contravene the dictates of the Fourth Amendment
when he accompanied, for her protection, “a very typical East
Tennessee ‘country woman,’ who was insistent upon entering
her residence ‘come hell or high water,’” to look for a water
leak in the darkened residence. On appeal, Defendants claim
there was no exigency to justify the entry and, therefore, the
agents should have sought a warrant. When reviewing a
district court’s decision to deny a motion to suppress, we
review the district court’s legal conclusions de novo and
disturb its factual findings only if they are clearly erroneous.
United States v. Bates, 84 F.3d 790, 794 (6th Cir. 1996).
The Fourth Amendment provides that: “The right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things
to be seized.” U.S. CONST. amend IV. The “chief evil”
against which the Fourth Amendment protects is the “physical
entry of the home.” Payton v. New York, 445 U.S. 573, 585
(1980). The Fourth Amendment requires that searches of the

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

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

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

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

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Nos. 02-5001/5002/5003 United States v.
Williams, et al.
17
concerning the possible water leak and their suspicion of drug
activity.
The Rohrig Court concluded that there was a compelling
governmental interest involved there because the police
officers were performing a “community caretaking function”
when they sought to abate the nuisance. Acknowledging that
looking to the severity of the offense committed, as the
Supreme Court did in Welsh, suggests that no vital
government interest was served by the warrantless entry to
quell a disturbing noise, the Rohrig court concluded that, “the
Welsh analysis has less relevance as one moves away from
traditional law enforcement functions and toward what the
Supreme Court has referred to as ‘community caretaking
functions.’” Rohrig, 98 F.3d at 1521. Rohrig focused,
however, on the fact that the officers in that case had only a
limited purpose—abating the nuisance—and were not
“questioning a subject or searching for evidence of a
suspected offense.” Id.
Here, the agents’ motives in entering were arguably not as
pure. The agents testified that Agent Henderson entered the
apartment in his capacity as a member of the local Sheriff’s
Department and not as a federal agent. However, the agents
in this case were called to the Bluegrass residence in their
capacity as DEA agents. Smith and Barnett had explained
over the telephone that they suspected drug activity in the
house and described the smell and leaves in the residence.
The officers too suspected drug activity prior to the entry.
Thus, although the officers ostensibly entered the home to
assist Smith, they were also suspicious, if not convinced, that
drug-related activity was taking place inside the residence
before they entered without a warrant. Unlike the entry in
Rohrig, the entry in this case cannot be said to have been
solely related to Agent Henderson’s “community caretaking
function.” Thus, even if we apply Rohrig’s conclusion that
the warrant requirement is implicated to a “lesser degree”
when police officers act in their roles as community
18 United States v.
Williams, et al.
Nos. 02-5001/5002/5003
caretakers, id. at 1523, it is not clear that the officers were
acting solely in this capacity here. The community caretaking
function of the police cannot apply where, as here, there is
significant suspicion of criminal activity. As the Supreme
Court has explained, the community caretaking function of
the police applies only to actions that are “totally divorced
from the detection, investigation, or acquisition of evidence
relating to the violation of a criminal statute.” See Cady v.
Dombrowski, 413 U.S. 433, 441 (1973). Additionally,
despite references to the doctrine in Rohrig, we doubt that
community caretaking will generally justify warrantless
entries into private homes.
Rohrig relied on cases in which a lower federal court and a
state supreme court each concluded that water leaking into
apartments below sufficiently threatened the safety of the
inhabitants of neighboring apartments to justify a warrantless
intrusion. Id. at 1520 (citing United States v. Boyd, 407 F.
Supp. 693, 694 (S.D.N.Y. 1976) and State v. Dube, 665 A.2d
338, 399 (Me. 1995)). This case, however, is distinguishable
from those situations where the police are informed that there
is definitely a water leak and that it is threatening to damage
not only the apartment where the leak might be found, but
also is threatening to harm the apartment – and, importantly,
the neighbors – below. Unlike the situations in Rohrig,
Boyd, and Dube where the problem the police sought to
address was certain, the possible water leak in this case was
only speculative. Moreover, the danger, if any, in this case
was to the carpet in the Bluegrass residence only. There was
no potential for another residence to be damaged or for other
people to be disturbed by the possible water leak at the
Bluegrass residence. As the district court concluded,
protecting Defendants’ interest in maintaining the privacy of
the Bluegrass residence would not diminish their neighbors’
interest in maintaining the privacy of their own houses as was
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
at 399.

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Nos. 02-5001/5002/5003 United States v.
Williams, et al.
19
The Government contends that Defendants had a
diminished interest in maintaining the privacy of the
Bluegrass residence because they were not using it as their
primary residence. Generally, as noted above, the home is
sacrosanct. See Payton, 445 U.S. at 585. Although it appears
that Defendants were not using the Bluegrass residence as
their primary abode, we decline to address whether the
Bluegrass residence was entitled to a lesser degree of Fourth
Amendment protection than a traditional residence because
we find that Defendants maintained some significant and
legitimate privacy interest in the Bluegrass residence and,
under the circumstances of this case, the warrantless entry at
issue would not be justified under even the most basic of
Fourth Amendment protections.
The Supreme Court has emphatically held that the Fourth
Amendment protects “‘the sanctity of a man’s home and the
privacies of life’” from unreasonable government invasions.
Payton, 445 U.S. at 585 (quoting Boyd v. United States, 116
U.S. 616, 630 (1886)). Every citizen has a fundamental right
to the protections guaranteed by the Fourth Amendment.
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
agents knew that there was absolutely no exigency, and they
clearly could have obtained a warrant. What occurred in the
circumstances of this case is precisely what the Fourth
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
the private search doctrine as the Government argues, the
government clearly violated the Fourth Amendment when it
conducted a warrantless entry into the Bluegrass residence.
2. Private Search
Alternatively, the Government argues that the warrantless
entry was justified as a private search that caused no more of
20 United States v.
Williams, et al.
Nos. 02-5001/5002/5003
2The Bluegrass residence lease did not co ntain any provision
permitting Smith, as landlord, to enter the residence at will. Tennessee
law perm its a landlord to “enter [a] dwelling unit without consent of the
tenant in case of emergency,” which is defined as “a sudden, generally
unexpected occurrence or set of circum stances demanding imm ediate
action.” TE N N. CODE AN N. § 66 -28-403(b). Just as we conclude that the
pos sible water leak at issue here cannot constitute an “exigent
circumstance” under the Fourth Amendment, it likewise cannot be a
“sudden” circumstance “demanding immediate action” under this
provision of Tennessee law.
an infringement on Defendants’ privacy than did the earlier
search by Smith and Barnett. Defendants counter that the
private search doctrine does not apply to residences under this
Court’s decision in United States v. Allen, 106 F.3d 695 (6th
Cir. 1997).
Although Tennessee law probably did not permit Smith and
Barnett to enter the Bluegrass residence,2 Defendants’ Fourth
Amendment rights were not infringed when they did so on
October 22, 1999. The Fourth Amendment is “wholly
inapplicable ‘to a search or seizure, even an unreasonable one,
effected by a private individual not acting as an agent of the
Government or with the participation or knowledge of any
governmental official.’” See United States v. Jacobsen, 466
U.S. 109, 114-15 (1984) (quoting Walter v. United States, 447
U.S. 649, 662 (1980) (Blackmun, J., dissenting)).
In Jacobsen, the Supreme Court held that a private search
followed by a Government search may be appropriate under
certain circumstances. Id. at 121. That case involved a
package damaged during shipping by a private shipping
company, opened by employees of that company, and found
to contain a cocaine-like substance. The Supreme Court held
that no Fourth Amendment violation occurred when the
company summoned law enforcement officials, who then re-
traced the private search. Id. The Court held that “additional
invasions of . . . privacy by [a] government agent [following

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Nos. 02-5001/5002/5003 United States v.
Williams, et al.
21
on the heels of a private search] must be tested by the degree
to which they exceeded the scope of the private search.” Id.
at 115. Thus, the Government may not exceed the scope of
the private search unless it has an independent right to search.
Id. at 121 (“The fact that . . . respondents’ privacy interest in
the contents of the package had been largely compromised is
highly relevant to the reasonableness of the agents’ conduct
. . . .”).
In Allen, a panel of this Court unequivocally stated: “[T]his
Court is unwilling to extend that holding of Jacobsen to cases
involving private searches of residences.” 106 F.3d at 699.
The Government makes much of the fact that the Allen Court
failed to acknowledge dicta in this Court’s earlier decision in
United States v. Clutter, 914 F.2d 775 (6th Cir. 1990), which
suggested that the private search doctrine could apply to
homes. Clutter held that a warrantless search of a home was
justified by a child’s consent because that child was routinely
left in exclusive control of the home that he shared with his
siblings, mother, and the defendant. Id. at 778. In dicta,
however, the Court also explained that the search was also
reasonable because, after entering the home with consent, the
officer merely retraced the private search and confirmed the
fruits of that search. Id. at 779. We now conclude that the
Allen Court was not obliged to adhere to the dicta in Clutter
and, further, find that the Clutter Court’s failure to make any
real distinction between a federal express package and a
home, which is entitled to significantly more protection, casts
doubt on the alternative holding in that decision.
However, even assuming that the Bluegrass residence was
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
interest of Defendants not already frustrated by Smith’s
private search. Because we find that the scope of the
Government search necessarily exceeded the scope of the
private search, we find that the private search doctrine cannot
22 United States v.
Williams, et al.
Nos. 02-5001/5002/5003
3Given our findings that Defendants’ constitutional rights were
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
challenges relating to the searches and arrests that stemmed from this
warrantless arre st.
justify Agent Henderson’s search. Smith requested that
Agent Henderson enter the Bluegrass residence precisely
because she wanted him to complete a broader search than her
search earlier in the day. Earlier, Smith had declined to go
beyond the living room and kitchen of the Bluegrass
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,
where Smith had not looked, and then navigated the rest of
the house with a flashlight, including the bedrooms,
washroom, and bathrooms. Thus, we hold that the
warrantless entry and search of the Bluegrass residence was
not justified by the private search doctrine. Moreover,
because the warrantless entry into the Bluegrass residence
was not justified by exigent circumstances or any other
exception to the Fourth Amendment’s warrant requirement,
the agents should have obtained a warrant.3
B. Williams’s Fourth Amendment Claims
The district court stated: “It is undisputed that if Agent
Henderson’s first warrantless entry of the Bluegrass residence
was unconstitutional, then all subsequent evidence was
obtained unlawfully because the subsequent search and arrest
warrants were derived solely from evidence obtained by
Agent Henderson during that entry.” On appeal, the
Government argues that even if the warrantless entry of the
Bluegrass residence was unconstitutional, Williams lacks
standing to challenge the subsequent searches and the “fruit
of the poisonous tree” doctrine cannot extend to him.
Williams concedes that he lacks standing to contest the

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Nos. 02-5001/5002/5003 United States v.
Williams, et al.
23
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. Under the circumstances presented by
this case, we agree that the “fruit of the poisonous tree”
doctrine extends to the evidence against Williams.
The “exclusionary rule” requires, generally, that evidence
seized during an unlawful search cannot be used as proof
against the victim of the search. Id. at 484. This prohibition
extends to evidence obtained directly from the unlawful
invasion as well as that which is indirectly obtained. Id. The
Supreme Court explained:
[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
24 United States v.
Williams, et al.
Nos. 02-5001/5002/5003
with the unconstitutional warrantless entry into the Bluegrass
residence. There was no intervening information, inquiry, or
surveillance to purge the evidence obtained at the Meridale
residence of the taint associated with the illegal entry into the
Bluegrass residence. Thus, we conclude that the connection
between the unlawful entry and the arrest of Williams at the
Meridale residence was not “so attenuated as to dissipate the
taint.” Id. at 491.
III. CONCLUSION
For the reasons stated above, we REVERSE the decision
of the district court to deny Defendants’ motions to suppress
and REMAND this case for further proceedings consistent
with this opinion.

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