RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0257p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellant,

v.

TRACY WASHINGTON,

 Defendant-Appellee.

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No. 08-3317

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 07-00052-001—Michael R. Barrett, District Judge.

Argued: June 12, 2009

Decided and Filed: July 22, 2009 

Before: BOGGS, Chief Judge; and BATCHELDER and COOK, Circuit Judges.

_________________

COUNSEL

ARGUED: Daniel S. Goodman, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellant. Richard W. Smith-Monahan, FEDERAL PUBLIC

DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: Daniel S. Goodman,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant.

Richard W. Smith-Monahan, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati,

Ohio, for Appellee. 

_________________

OPINION

_________________

BOGGS, Chief Judge. In the early morning hours of Christmas day, two police

officers entered George Young’s apartment without his permission or a warrant. His

nephew, Tracy Washington, had been residing in the apartment for several months and was

entertaining friends. Young was in jail at the time and the police told Washington that he

was suspected of criminal trespass. Despite Washington’s vigorous and repeated objections,

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

these officers patted him down and searched the apartment, finding illegal drugs, drug

paraphernalia, and a loaded gun. We affirm the district court’s suppression of this evidence

because the Fourth Amendment prohibits the warrantless search of a private home to

investigate minor offenses, such as this one, that do not pose any threat of imminent violence

or result in an ongoing injury to the community. 

I

Washington began living with his uncle, George Young, in the fall of 2006 at 1906

Elm Street, Cincinnati, Ohio. Police regularly patrolled this building, which was the site of

frequent drug arrests and activity. In his deposition, Officer Brendon Rock said that in the

course of his six years on the Cincinnati police force, he had responded to disturbances in

basically every apartment in the building. During his patrol on December 18, 2006, Officer

Rock recognized Young as the man he had recently observed drop a crack pipe in the

hallway of the building and arrested him on drug paraphernalia charges. As Officer Rock

was ushering Young into a police car, Young shouted up to Washington, who was watching

from the window of the apartment, instructing him to secure the apartment and keep people

out.

A few days after Young’s arrest, the building’s landlord, Jeff Moore, informed

Officer Rock that he had observed a number of non-residents loitering in the halls. There

were already many signs in the hallways indicating that trespassers and non-residents were

unwelcome, and Moore requested that police officers patrol the building and remove any

such individuals. With respect to Young’s apartment, Moore told Rock that tenants had

informed him there was a great deal of foot traffic and a tenant had seen one man enter the

unit with a gun. Moore also apparently told Rock that, in light of Young’s arrest, no one was

permitted to be in the unit. However, he did not indicate that there had been or would be any

attempt to evict Young. Officer Rock did not act on this information immediately or make

any effort to obtain a warrant on the basis of this tip. Rather, he agreed to continue

patrolling the building’s halls.

Driving past the apartment building a few days later at 5:40 am on December 25,

2006, Officer Rock observed two women on the street engaged in a verbal altercation. One

of the women involved, Ellen Wilson, told Officer Rock that she was Young’s girlfriend and
No. 08-3317 United States v. Washington Page 3

was looking after his apartment while he was in jail. From the street, Officer Rock observed

that the lights in Young’s apartment were on. Wilson told Rock that there were two people

in the unit. She did not request his help or say they were trespassing. Nevertheless, Rock

claims that his unspoken assumption at the time was that any visitors were trespassing

because the landlord had previously told him that no one other than Young was permitted

in the unit. At Rock’s request, Wilson agreed to let the police search the apartment. For his

own part, Rock later testified that he did not believe Wilson had authority to consent to the

search. Asked why he bothered obtaining her written authorization, he explained, “to cover

all my bases.”

Wilson accompanied Rock to the apartment, knocked on the door and exclaimed that

she was with the police. An unknown person in the apartment opened the door. Officer

Rock and his partner entered. Washington was among those who were immediately visible,

and he became belligerent and told Rock that he was not allowed in the apartment. Officer

Rock testified that drug paraphernalia in the living room was in plain view once he was

inside the apartment. Nothing in the record suggests this material was visible from the

doorway. Upon seeing this evidence of criminal activity, Rock asked the defendant if he had

anything illegal in his possession. Washington replied, “You can’t search me.” Officer

Rock informed Washington that he was suspected of criminal trespass and would be patted

down. Washington then stated, “I’m dirty.” Rock asked again whether Washington

possessed anything illegal. Washington nodded affirmatively. Rock asked if it was a

firearm, and Washington nodded affirmatively a second time. Rock and his partner placed

Washington in handcuffs and retrieved a .357 revolver from the waistband of Washington’s

pants and a crack pipe from his pocket. 

A criminal history check revealed that Washington was a previously convicted felon

imprisoned for more than one year and so he was charged under 18 U.S.C. § 922(g)(1) for

being in possession of a firearm. Although the district court initially denied the defendant’s

motion to suppress for lack of standing, it then granted the defendant’s motion to reconsider

and suppressed the evidence in light of defendant’s evidence showing that he had an

expectation of privacy in the unit and that the search violated the Fourth Amendment. In its

motion to reconsider, the government for the first time argued that, even if Washington had

an expectation of privacy, both probable cause and exigent circumstances justified the
No. 08-3317 United States v. Washington Page 4

warrantless search of the apartment. The district court denied this motion, and the

government appeals. There are two issues before us: first, did the district court err in

concluding that Washington demonstrated an expectation of privacy in the apartment such

that he now has standing to assert the search violated the Fourth Amendment? And second,

has the government demonstrated that exigent circumstances justified the search so as to

overcome the Fourth Amendment presumption of unreasonableness that attaches to

warrantless searches of a private home?

II

“When reviewing a district court’s decision on a motion to suppress, we use a mixed

standard of review: we review findings of fact for clear error and conclusions of law de

novo.” United States v. Davis, 514 F.3d 596, 607 (6th Cir. 2008). Washington’s standing

to challenge the search of his uncle’s apartment hinges on whether he had a reasonable

expectation of privacy in the residence. To establish such an expectation, the defendant must

show (1) that he had a subjective expectation of privacy, and (2) that his expectation was

objectively reasonable. United States v. Pollard, 215 F.3d 643, 647 (6th Cir.), cert. denied,

531 U.S. 999 (2000). An expectation is objectively reasonable only when it is one that

“society is prepared to recognize as legitimate.” Ibid.

The Sixth Circuit has generously construed the Fourth Amendment as protecting

nearly all overnight guests, even when the guest occupies a common area in the apartment

that is not private from other residents. See id. at 647-48 (holding that an occasional

overnight guest who was permitted to be in the residence alone and who kept personal

belongings in a closet in the living room had a reasonable expectation of privacy). In certain

cases, this circuit has even extended standing to challenge a search to non-overnight guests

who are permitted to keep items in the residence. See United States v. Waller, 426 F.3d 838,

844 (6th Cir. 2005) (holding that a transient person who was never an overnight guest had

a reasonable expectation of privacy in a friend’s apartment where he showered, changed

clothes, and kept some personal possessions). 
No. 08-3317 United States v. Washington Page 5

1

The district court’s determination was not clearly erroneous. Young testified that he had given

his nephew keys to the unit and permission to reside in the building. Washington was a frequent overnight

guest who kept clothes and other possessions there. Washington’s brother also testified that the defendant

was living with Young. A person may acquire a reasonable expectation of privacy in property in which

he has neither ownership nor any other legal interest. In Minnesota v. Olson, 495 U.S. 91 (1990), the

Supreme Court held that a person’s “status as an overnight guest is alone enough to show that he had an

expectation of privacy in the home that society is prepared to recognize as reasonable.” Id. at 96-97. 

On appeal, the government concedes that Washington had a subjective expectation

of privacy,1

 Br. Appellant at 28, but gives several reasons why this expectation was

objectively unreasonable. First, the government contends that because Washington was

previously arrested for trespassing in a different unit of the same apartment building, he

could not possibly maintain an objectively reasonable expectation of privacy in the

apartment leased by his uncle. Br. Appellant at 30. The government cites no legal

precedent in support of this claim, and it is without merit. A person who trespasses in

one apartment may legitimately live in another; he is not thereby cast out of the

habitation.

Next, the government contends that society does not recognize Washington’s

expectation of privacy as reasonable because he was engaged in criminal activities in the

apartment. See Br. Appellant at 31. Although it is certainly true a person cannot acquire

an expectation of privacy in a structure that has been legally condemned such that any

presence is forbidden, United States v. Whitehead, 415 F.3d 583, 587-88 (6th Cir. 2005),

the use of a space for illegal activity does not alter the privacy expectations of a person

who would otherwise have standing. Minnesota v. Carter, 525 U.S. 83, 91 (1998); see

also id. at 109-10 (“As the Solicitor General acknowledged, the illegality of the

host-guest conduct, the fact that they were partners in crime, would not alter the

analysis. . . . If the illegality of the activity made constitutional an otherwise

unconstitutional search, such Fourth Amendment protection, reserved for the innocent

only, would have little force in regulating police behavior toward either the innocent or

the guilty.”) (Ginsburg, J. dissenting). In light of the fact that Washington had been

lawfully residing in the apartment for several months, the notion that drug use or illegal

activity eviscerates any right to challenge a search cannot possibly be sustained. A

criminal may assert a violation of the Fourth Amendment just as well as a saint.
No. 08-3317 United States v. Washington Page 6

The government’s last argument, perhaps related to its previous one, is that

Washington does not have standing to assert a Fourth Amendment violation because his

legal status at the time of the search was that of a trespasser. Br. Appellant at 29-30. We

have previously held that landlord-tenant law determines whether a person’s expectation

of privacy is objectively reasonable under the Fourth Amendment. United States v.

Hunyady, 409 F.3d 297, 301 (6th Cir. 2005). By definition, trespassers cannot have an

objectively reasonable expectation of privacy in the property on which they are

trespassing. United States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998). But in this

case, Young undeniably acquired a legitimate interest in the apartment when he signed

a lease and invited Washington onto his property. According to the government,

Washington was nevertheless a trespasser because Young’s lease barred multiple

occupants and prohibited tenants from using their apartments for illegal activity. The

government also contends that Young’s failure to pay rent on a timely basis in December

2006, the month of the search, diminished his “ability to confer overnight guest status

on other occupants of his apartment.” Br. Appellant at 30. Leaving aside the specific

allegations of how Young purportedly violated his lease, the very premise of the

government’s argument is flawed because no lawful efforts were ever undertaken to

evict Young or Washington from the apartment.

The landlord’s mere authority to evict a person cannot of itself deprive that

person of an objectively reasonable expectation of privacy. There are extensive legal

procedures that a landlord must adhere to before occupants are lawfully dispossessed of

property without their consent, and the landlord’s failure to evict an occupant who is in

technical violation of the lease effectively waives whatever authority the landlord has

to treat a person as a trespasser. 49AM.JUR. 2D Landlord and Tenant § 260 (2009) (“As

general rule, any act of the landlord that affirms the existence of the lease and recognizes

the tenant as lessee, after the landlord has knowledge of a breach of the lease which

would constitute a cause to terminate the lease, results in a waiver by the landlord of the

right to declare a forfeiture of the lease.”); 52 C.J.S. Landlord & Tenant § 185 (2009)

(“When a tenant demonstrates that a landlord long had knowledge of the breach of a real

property lease, yet provided no notice of it to the tenant, the landlord is considered to
No. 08-3317 United States v. Washington Page 7

have encouraged the default, and therefore, should not be allowed to take advantage of

it by claiming forfeiture of lease by the breach.”). In this case, the landlord never

availed himself of these legal procedures. Indeed, Young’s landlord continued accepting

rent in the months after he discovered that Washington lived on the premises and after

other residents began complaining of possible drug activity in connection with his

specific apartment.

In fact, this case illustrates the intolerable implications of the government’s

claim. The breach on which the government now primarily relies is that “Young got

behind on his rent . . . sometime in December of 2006.” The only support for this

allegation is the landlord’s agreement with a leading question at the suppression hearing.

And there is no evidence that rent was still overdue at the time of the search or that

Officer Rock was even aware of any late rent. If a landlord’s unexercised authority over

a lodging with overdue rent alone divested any occupant of a reasonable expectation of

privacy, millions of tenants and their guests would be deprived of Fourth Amendment

protection. Paying late is a common occurrence, especially in economically turbulent

times, and we reject the notion that the Constitution ceases to apply in these

circumstances.

This result is completely consistent with landlord-tenant law. Under Ohio law,

“a tenant who ‘holds over’ is a tenant at sufferance and the landlord may elect to treat

him as a trespasser.” Cleveland v. A.J. Rose Mfg. Co., 624 N.E. 2d 245, 248 (Oh. Ct.

App. 1993) (emphasis added). However, an occupant is not a trespasser if the landlord

does not treat him as such. Pollard, 215 F.3d at 647. Accepting rent, fulfilling service

requests, and failing to invoke the remedial provisions of the lease in spite of a lessee’s

breach are all ways a landlord might affirm the continuation of a lease and recognize that

the tenant is lawfully present. See, e.g., Cuyahoga Metro. Hous. Auth. v. Hairston, 124

Ohio Misc. 2d 1, 2 (Cleveland Mun. Ct. 2003); Brokamp v. Linneman, 153 N.E. 130,

131 (Ohio Ct. App. 1923); Quinn v. Cardinal Foods, Inc., 485 N.E. 2d 741, 744-45

(Ohio Ct. App. 1984); see also 49 AM. JUR. 2D Landlord and Tenant § 267.
No. 08-3317 United States v. Washington Page 8

In support of its argument that the district court erred, the government cites

several cases, none of which defeats our conclusion that a lawful occupant of an

apartment is not analogous to a trespasser simply because the landlord has the legal

authority to evict him. In United States v. Allen, 106 F.3d 695 (6th Cir. 1997), we held

that a hotel guest’s use of a room for illegal purposes and beyond the pre-paid rental

period vitiates the guest’s reasonable expectation of privacy. The motel manager in

Allen had properly evicted the defendant in that case from the room prior to consenting

to a police search. By comparison, the landlord in this case never exercised any lawful

authority over the premises that deprived the defendant of a reasonable expectation of

privacy and standing to challenge a search under the Fourth Amendment. Further, the

nature of the interest held in an apartment differs from that of a hotel room. While

tenants may generally hold over an apartment and are expected to give a landlord notice

of their intent to leave, a hotel guest’s right to a room is limited to a predetermined

period of occupancy. There is a presumption, in other words, that hotel guests will

check out at the designated time and their right in the premises does not automatically

continue for some indefinite period.

Another case the government cites, United States v. Hunyady, is similarly

inapplicable. In Hunyady, we held that a man who continued to live in a house owned

by his dead father, even after the representative of the estate had the locks changed, did

not have standing to assert a violation of the Fourth Amendment. 409 F.3d at 301-02.

The defendant’s only basis in asserting an expectation of privacy in that case was his

refusal to acquiesce to the representative’s lawful attempts to eject him. Ibid. There is

nothing contradictory about holding that Washington’s expectation of privacy is

legitimate and fundamentally distinct from the expectation of an occupant who broke

into a home after the locks had been changed to keep him out.

The only apposite authority that the government relies on is United States v.

Ross, 43 F. App’x 751 (6th Cir. 2002). In that case, we had to determine whether a

month-to-month tenant had a reasonable expectation of privacy in his apartment even

though he abandoned the property two months before the search, had not paid rent in
No. 08-3317 United States v. Washington Page 9

four months, and did not tell the landlord that he intended to return. Id. at 757. Ross’s

lease also stipulated that a lessee must vacate the premises without any demand from the

landlord if “any installment of rent is due and unpaid for more than three days.” Ibid.

In several obvious ways, Ross is distinguishable from the case at bar: Washington never

abandoned the apartment; rent was at most twenty-five days overdue, if overdue at all;

and Young’s lease did not specify that he had to vacate the premises immediately in the

event of late payment. For the sake of clarity, however, we note that Ross is unpublished

and not binding, and we do not adhere to it to the extent it could be read to imply that

a tenant’s violation of a lease can alone deprive him and his guests of a legitimate

expectation of privacy. Id. at 757-58. 

III

Because Washington had a legitimate expectation of privacy independent of the

landlord’s right to evict him and we affirm the district court’s decision on standing, we

now proceed to consider whether the investigation of a criminal trespass constitutes an

exigency such that the warrantless search of Washington’s apartment was reasonable

under the Fourth Amendment. “[T]he burden is on the government to demonstrate

exigent circumstances that overcome the presumption of unreasonableness that attaches

to all warrantless home entries.” Welsh v. Wisconsin, 466 U.S. 740 (1984); see also

Hardesty v. Hamburg Twp., 461 F.3d 646, 655 (6th Cir. 2006) (“The government bears

the burden of proving that exigent circumstances . . . justify a warrantless search.”).

In its original opinion and order suppressing evidence, the district court never

addressed and the government did not raise the issue of exigent circumstances. This

issue instead came up for the first time in the government’s motion for reconsideration,

Pl.’s Mot. Recons. at 4 (asserting that Officer Rock entered the apartment “in response

to apparent on going [sic], immediate criminal activity”), and the district court denied

this motion without elaborating on the merits of the government’s argument. The

government’s failure to raise these points as an alternative justification in either of its

two pleadings opposing the suppression of evidence arguably results in their waiver. See

United States v. Mastromatteo, 538 F.3d 535, 544 (6th Cir. 2008). But because the
No. 08-3317 United States v. Washington Page 10

district court did not explicitly address the government’s argument or explain why it was

denying the motion for reconsideration, we will address whether the warrantless search

was reasonable under the Fourth Amendment.

In support of holding that the circumstances here, viewed objectively, presented

an exigency, the government observes that “the unit was supposed to be vacant” and that

the landlord informed the police that tenants saw “several people, some of them armed,

. . . going in and out of the unit during the past week.” Br. Appellant at 18. As we have

previously noted, nothing in the record indicates that officers saw any contraband from

the doorway. Rather, the sole exigency stems from Officer Rock’s belief that an

ongoing criminal trespass was taking place.

A search of a home conducted without a warrant violates the Fourth Amendment

with “only . . . a few specifically established and well-delineated exceptions.” Katz v.

United States, 389 U.S. 347, 357 (1967). The Supreme Court has recognized four

circumstances in which “‘the exigencies of the situation’ make the needs of law

enforcement so compelling that the warrantless search [of a person’s home or his person]

is objectively reasonable under the Fourth Amendment.” Brigham City v. Stuart, 547

U.S. 398, 403 (2006) (quoting Mincey v. Arizona, 437 U.S. 385, 393-394 (1978)).

Exigent circumstances are present as a matter of law (1) to engage in hot pursuit of a

fleeing felon; (2) to prevent the imminent destruction of evidence; (3) to prevent a

suspect from escaping; and (4) to prevent imminent harm to police or third parties. Ibid.;

see also United States v. Rohrig, 98 F.3d 1506, 1515 (6th Cir. 1996).

With good reason, the government does not contend this case falls into any of

these categories. After all, Officer Rock was clearly not engaged in the “hot pursuit” of

any suspect, let alone a fleeing felon; there was no reason to think that allowing an

ongoing criminal trespass to continue would result in the destruction of any evidence or

the suspect’s escape; and the fact that Officer Rock did not call for backup until after he

entered the apartment strongly suggests that he did not believe the men were armed or,
No. 08-3317 United States v. Washington Page 11

2

Cases involving imminent harm generally involve such things as burning buildings, Michigan

v. Tyler, 436 U.S. 499, 509 (1978), or kidnapped minors, United States v. Johnson, 22 F.3d 674 (6th Cir.

1994), where harm is likely and potentially lethal. However, once the police become aware of a battery,

they need not wait to intervene until the threat becomes life-threatening lest a court hold there was no

exigency. Brigham City, 547 U.S. at 406 (“Nothing in the Fourth Amendment required [the police] to wait

until another blow rendered someone ‘unconscious’ or ‘semi-conscious’ or worse before entering. The

role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to

casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too

one-sided.”).

at a minimum, that an immediate search of the residence was necessary to prevent

imminent harm to himself or third parties.2

Of course, we have previously observed that “the Fourth Amendment’s broad

language of ‘reasonableness’ is flatly at odds with any claim of a fixed and immutable

list of established exigencies.” Rohrig, 98 F.3d at 1519. In Brigham City, for example,

officers observed a fist fight from outside a home in which a loud party was taking place.

547 U.S. at 403. After observing that a person involved in the fight appeared to be

injured, police officers entered the home without a warrant. Ibid. Holding that exigent

circumstances justified immediate entry into the home, the Supreme Court relied not just

on the potential that further violence might erupt if the police did not intervene, but on

the need “to assist persons who are seriously injured or threatened with such injury.”

Ibid. As the Court explained, the police play a critical role not just in “preventing

violence and restoring order,” but in rendering emergency aid pursuant to the police

force’s role as community caretakers. Id. at 406.

There is simply no legal support for holding that an ongoing criminal trespass,

on its own, constitutes an exigency that overrides the warrant requirement. Our previous

decisions certainly do not go so far. With one or two exceptions, our decisions fit

squarely into the four categories discussed earlier. The exceptions entail the need to stop

an ongoing nuisance that is disturbing third parties. In Rohrig, police were confronted

with a situation in which extremely loud music was coming from a residence in the

middle of the night. 98 F.3d at 1519. Responding to numerous complaints, police

officers first knocked on the door and windows of the residence. Ibid. When no one

came to the door, the police entered in order to turn off the stereo. Ibid. In the course

of searching for the stereo and conducting a protective sweep, officers came upon illegal
No. 08-3317 United States v. Washington Page 12

3

The police need not wait until an accident is imminent before they search an area in which they

have probable cause to believe explosive materials are being illegally mishandled. Just as the investigation

of certain minor offenses will never present an exigency, other offenses may be so inherently dangerous

that police can assume from their very ongoing commission that harm is imminent. See, e.g., United States

v. Atchley, 474 F.3d 840, 851 n. 6 (6th Cir.) (holding that the ongoing operation of a methamphetamine

lab in an apartment building constitutes an exigency), cert. denied, 127 S. Ct. 2447 (2007).

drugs. Ibid. We held even though there was no threat of physical injury, it was

reasonable for the officers to enter the home without a warrant to prevent any further

harm to the community. Ibid.

As we have repeatedly and consistently observed, the critical issue is whether

there is a “true immediacy” that absolves an officer from the need to apply for a warrant

and receive approval from an impartial magistrate. Williams, 342 F.3d at 438. In

burglary cases, the possibility that a lawful resident has been injured or is being held

hostage gives rise to exigent circumstances. See, e.g., United States v. Brown, 449 F.3d

741 (6th Cir. 2006); United States v. McClain, 444 F.3d 556, 563 (6th Cir. 2005). In

Rohrig, the exigency stemmed from an ongoing injury to the community, even if not

resulting in any physical harm. In this case, however, the facts at best evidence the

vague potential for harm to persons or property as opposed to an imminent or ongoing

harm. Even factoring in reports from days earlier that firearms were present, officers

had no reason to believe anyone on the scene intended to use a gun on the property or

that those present were stealing Young’s possessions or ransacking the apartment. And

that Young was in jail meant that he could not be held hostage.

To be fair, the potential danger posed by drug trafficking and drug traffickers is

greater than a loud stereo, and Washington’s neighbors and landlord no doubt found the

additional foot traffic and unsavory characters traveling to and from the unit irksome if

not frightening. But the government misreads our caselaw in positing that the rationale

of Rohrig must therefore extend to the case at bar. Reply Br. Appellant at 6. When

people may have the capacity to harm others, but are not engaged in an inherently

dangerous activity,3

 officers cannot lawfully dispense with the warrant requirement. An

ongoing nuisance that results in non-physical harm to others may constitute an exigency.

However, the mere possibility of physical harm does not.
No. 08-3317 United States v. Washington Page 13

It is certainly within our authority to identify new circumstances in which an

exigency exists even if they fall outside of the traditional categories, as we have done in

cases involving community caretaking such as when a warrantless home-entry is the

only way for the police to put an immediate stop to an ongoing nuisance. Rohrig, 98

F.3d at 1519. To conclude that even when police cannot identify any ongoing injury to

the community they may search homes without warrants would not merely go further

than our previous cases, it would contradict Supreme Court precedent. In Welsh v.

Wisconsin, for instance, the Court observed that “an important factor to be considered

when determining whether any exigency exists is the gravity of the underlying offense

for which the arrest [or search] is being made.” 466 U.S. at 753; McDonald v. United

States, 335 U.S. 451, 459 (1948). The purported exigency in Welsh stemmed from the

investigation of a civil traffic offense, which the Court held was of insufficient

importance to overcome the warrant requirement. Here the underlying offense under

Ohio law was criminal trespass—a fourth-degree misdemeanor punishable by a

maximum sentence of thirty days’ imprisonment. O.R.C. § 2911.21; O.R.C. § 2929.24.

While slightly more serious than the offense in Welsh, the government’s interest in

investigating a fourth-degree misdemeanor is still “relatively minor.” Welsh, 466 U.S.

at 750.

If we were to permit a warrantless home entry under these circumstances, which

were not urgent or life threatening, the effect would certainly undercut making “the

presumption of unreasonableness . . . difficult to rebut.” Ibid. Rather, it would allow

police officers on the scene to cloak themselves in judicial robes even when there is no

immediate and serious consequence to waiting for the approval of a neutral and detached

magistrate. For this reason, we hold that the community caretaker exception does not

provide the government with refuge from the warrant requirement except when delay is

reasonably likely to result in injury or ongoing harm to the community at large. 
No. 08-3317 United States v. Washington Page 14

IV

The district court did not err in granting defendant’s motion to suppress evidence

obtained in the search of his uncle’s apartment. Here, a police officer engaged in a

warrantless search of an apartment after unreasonably concluding that an exigency

existed. Cf. Herring v. United States, 129 S. Ct. 695, 704 (2009) (admitting evidence

obtained from an unreasonable search by an officer acting in good-faith reliance on

erroneous information provided by another law enforcement agency that negligently

maintained its records); Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990) (admitting

evidence obtained from a search based on the consent of a third party with apparent

authority over the property); Illinois v. Krull, 480 U.S. 340, 349-50 (1987) (admitting

evidence obtained from warrantless administrative searches performed in good-faith

reliance of a statute later declared unconstitutional). No exception to the exclusionary

rule covers the case where the police officer’s own conclusion was unreasonable.

V

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