United States v. Donald P. Rohrig

the by Cooksey to the warrant affidavit for 2302 Bleker provided information protective- detail than that information about the Officers’ contained less the Officers and, containing Phillips, sweep discovery unlike Mrs. of the razor blade by Mrs. provided statement, residue, Cooksey’s statement was cocaine and Blount’s statement. Phillips’ hand, unsworn; but, numerous the other on reliability. indicate its other circumstances III. neighborhood, Cooksey was resident reasons, foregoing prob- For the there was away from the two

living only two houses able cause for the issuance of the search searched, just vic- had been the houses Bleker; therefore, mo- for 2302 the warrant suspect attempted break-in tim of correctly suppress denied. Ac- tions to were searching. police were She for whom cordingly, respectfully I dissent from the ma- falsify information motive to apparent had no jority’s holding otherwise. And, revenge spite. or purpose for the than far more detail contains her statement acknowledges: she identified majority person as that of the photograph

Thomas’ home; into her de- had tried to break

who the location where the Bleker as

scribed 2802 up”; explained that

suspect “end would go there because he sold suspect would “Lamont with the

drugs that location with America, Afro”. STATES of UNITED Plaintiff-Appellant, Moreover, contrary majority’s to the asser- tion, drug-dealing Cooksey’s about statement not the activity 2302 Bleker was ROHRIG, Defendant-Appellee. P. Donald theory that the for the Officers’ factual basis possessed No. 94-4207. Bleker contra- occupants of 2302 theory supported was also That band. Appeals, United States Court suspect that the who had belief the Officers’ Circuit. Sixth Campbell, in which the Officers fled 3717 cocaine, cash, weapon, and a found crack Argued Oct. 1995. Bleker, hiding and the Officers’ inside Decided Oct. traffick- experience gang-related narcotics area, including ing investigations in the Offi- knowledge that crack cocaine

cer Weston’s a “smoke” frequently utilize both

dealers from which to “stash” house

house and a totality

conduct their business. Under circumstances, the Officers also had occupants arrest

probable cause to possession of contraband. Bleker

C. probable cause to ar-

Because there was Johnson, harboring both for

rest Blount and contraband, fugitive possession of and for Bleker, protective sweep of 2302 incident arrests, the Fourth did not violate reasons, For same

Amendment. not the post-arrest

Blount’s statement was Accordingly,

product of an unlawful arrest. majority erroneously also excised (argued), Department Marani

Vicki S. Justice, Division, Section, Appellate Criminal DC, (briefed), Connelly Washington, Sean Justice, Department Divi- Criminal sion, DC, Bulford, Washington, E. Robert Attorney, Office of the Attor- Asst. U.S. Akron, OH, ney, Plaintiff-Appellant. for briefed), (argued A Borcoman Tom Canton, OH, Lindsey, for De- Borcoman & fendant-Appellee. DAUGHTREY,

Before: SILER and ROSEN, Judges; Judge.* Circuit District * Rosen, sitting by designation. gan, The Honorable Gerald E. United States Judge District the Eastern District of Michi- ROSEN, D.J., opinion Upon reaching the delivered the back door of Defen- SILER, J., court, joined. dant’s Officer Clark discovered that it in which 1526-27), DAUGHTREY, (pp. open, delivered a J. with unlocked screen door opinion. separate dissenting preventing access into the house. He called Tucker, to Officer who abandoned his effort ROSEN, Judge. District telephone joined to obtain a number and case, upon called to deter- In this we are at the back door. Officer Clark The officers mine officers violated the whether pres- knocked and hollered to announce their by entering private Fourth Amendment ence, again They but received no answer. early home without a warrant hours of opened door, then the unlocked screen response neighbor’s com- morning to a passed through porch through emanating plaint music from that about loud door, open emerged back into kitchen. court found that the offi- home. The district along way, All the and each time the offi- entry violated the Fourth cers’ warrantless room, cers entered a Officer Clark continued Amendment, accordingly granted the to announce that he was with the Canton Defendant-Appellee Donald P. motion of Police, anyone and to ask whether was home. Rohrig suppress evidence the officers dis- suppression hearing, At the Officer Clark home, entering including upon his covered that testified the music inside the house was shotgun. marijuana and a sawed-off We con- that so loud the officers had to raise their however, clude, that the officers’ conduct sat- in order to communicate voices with each isfied the Fourth Amendment standard testified, however, other. Defendant that “reasonableness,” and we therefore reverse. upstairs speakers, the stereo speakers, the two downstairs were turned on I. AND PROCEDURAL FACTUAL at the time the officers entered his home. BACKGROUND light A was on the kitchen when the May early morning In hours of the entered, remaining but the first-floor Canton, Ohio, Police Officers John rooms were dark. The officers then ob- Tucker received a com- Clark and Walter light emerging open served another from an emanating plaint of noise from the resi- loud doorway. Proceeding through doorway Defendant-Appellee dence of Donald P. light, they toward the travelled down some (“Defendant”). ap- Rohrig As the officers stairs and into Defendant’s basement. The proached a block of Defendant’s home within they officers testified that went downstairs car, squad they began in their to hear loud they that the not because believed was Shortly music. after the officers arrived on music, they source of the loud but because a.m., premises the at 1:39 somewhere be- hoped occupant to find an of the home who eight pajama-clad neighbors tween four and reaching Upon could turn the music down. emerged complain from their homes to about basement, the the officers discovered “wall- the noise. marijuana plants, to-wall” as well as fans and Using flashlight, end of his Officer the running water. banged repeatedly on the front door of Clark anyone response. Having received no failed to locate in the base- Defendant’s but floor, ment, squad returned to the first While Officer Tucker returned the officers upstairs attempt telephone ear in an to obtain the and then travelled to the second residence, floor, presence. continuing Officer Clark to announce their number stairs, two-story top around outside of the At the Officer Clark ob- walked residence, tapping lying on a man on the floor of one of the all the while no avail served bedrooms, he and also discovered that this its first-floor windows. As walked outside two house, speakers that he observed two stereo room contained the stereo was living pair the loud music. As Officer Clark in the first-floor room and another source of room, man, sleeping speakers upstairs speaker attempted in an with to rouse the who Defendant, Tucker running wire between the two floors on the turned out be Officer offending stereo. outside of the home. turned down leaving Defendant’s residence that hearing, Officer Clark Before suppression At the night, approximate- officers seized became combative that Defendant testified basement, ly marijuana plants awakened, swearing was so as he and started marijuana, processed and the two fire- to handcuff him. was forced that the officer officers, however, arms. The did not arrest however, Defendant, first testified his night, because Detective Swi- Defendant night of that the events recollection of federal au- hart wished to first consult with Once the officers waking up in handcuffs. Rather, thorities. Defendant was issued nobody else was in the other determined Canton, Ohio, violating a noise citation for bedroom, they ceased their search upstairs operation “any prohibits ordinance that turn, supervisor. and contacted noise-making device” in such a manner that Detective Swihart of supervisor contacted good neighborhood peace “the or order of the vice unit. the Canton Canton, Ohio, is disturbed.” Code General home at arrival at Defendant’s Upon § his 509.12.A violation of this ordinance is clas- a.m., misdemeanor,” Detective Swihart was pun- around 2:40 and is sified as “minor Clark, grow only by was shown the Officer ishable a maximum fine of briefed $100 basement, up- subsequently and was led no incarceration. Defendant operation ordinance, and remained hand- admitted that he violated this Defendant stairs where paid a fine brought Defendant $25. cuffed. The detective him, issued Miranda downstairs, uncuffed eventually charged with Defendant was produced explained and a con- warnings, and (1) possession two federal offenses: of mari- to obtain Defendant’s form in an effort sent juana with intent to distribute in violation to a further search of his home. consent 841(a)(1), possession § 21of U.S.C. and unregistered shotgun an sawed-off vio- that, although he could testified Swihart § lation of 26 U.S.C. 5861. Defendant sub- drinking,1 De- that Defendant had been tell sequently suppress filed a motion to appeared coherent and fendant nevertheless home, marijuana shotgun and found in his speech nor slurred his stumbled neither contending police the Canton officers’ further testified when he walked. Swihart entry into his home violated the Defendant that he need not that he informed Fourth Amendment. form, that it would sign the consent but be conducting evidentiary hearing After an on quicker signed if Defendant easier and 14, 1994, Judge George October W. White officers otherwise would form because the the United States District Court for the After Defendant seek a search warrant. agreed Northern District of with Defen- Ohio form, subsequent search signed the contention, accordingly granted dant’s marijuana up processed and two turned some suppress. Specifical- motion Defendant’s firearms, including illegal sawed-off shot- bench, ly, ruling Judge from the White gun closet of the bedroom in found that, regardless anyone found of whether initially was discovered. which Defendant appeared to be at home or whether the door hearing, dis- suppression At the Defendant unlocked, lawfully was the officers could not puted of Detective Swi- some of the details enter Defendant’s home in order to turn First, he testified that Swi- hart’s account. securing down the loud music first without impression that he hart had created the Consequently, illegal warrant. because this immediately if he refused entry would be arrested subsequently tainted all of the discov- Next, evidence, sign form. Defendant Judge the consent ered concluded that White “messing marijuana shotgun sup- stated that he heard must be upstairs even guns pressed.2 appeals with” the from his closet this rul- Government signed ing. form. before he the consent Judge hearing. questioned

1. At the testified that he had White also whether Defen- Defendant complete capacity dant had the to consent to the beginning consumed at around 9:00 or six beers search of his home after he had been awakened p.m. evening. 9:30 in the However, Canton officers. the dis- issue, expressly trict court did not rule on searched, II. ANALYSIS persons things and the or to be seized. Governing Ap- A. The This Standards Const, amend. IV. peal glance, language At reviewing first In the district court’s deci appears suggest potential Amendment two grant suppress, motion to sion to Defendant’s inquiry “shortcuts” in our that court’s factual find whether the offi- we will not disturb entry First, clearly cers’ warrantless ings they are erroneous. lawful. unless Johnson, speaks because the Amendment 9 F.3d “searches United States - seizures,” (6th denied, -, Cir.1993), ap- and because the officers cert. (1994). parently In intended to conduct neither a search case, upon entering nor a seizure party challenges the dis Defendant’s neither argue one could factual the Amendment trict court’s determinations. simply apply entry does at issue However, we review de novo Next, here. based on the Amendment’s divi- conclusions of law the district court reached separate sion into apparently two inde- Johnson, granting Defendant’s motion. 9 pendent parts, the “Reasonableness” Clause particular, In F.3d at 508. the de novo stan Clause, posit and the “Warrant” one could governs dard our review of district court’s entry that the officers’ need have been justified exigency that no determination “reasonable,” and that the absence of a war- police officers’warrantless into Canton rant for their does not bear on this reviewing Defendant’s home. this conclu However, inquiry. reasonableness our sur- sion, totality circum “we consider vey of the relevant case law reveals that stances and the ‘inherent necessities of the approaches neither of these two is reconcila- ” Johnson, situation at the time.’ 9 F.3d judicial prevailing ble with the construction Rubin, (quoting 508 United States v. 474 of the Fourth Amendment. (3d Cir.1973)). F.2d 268 First, firmly Court has and repeatedly rejected proposition that the Entry B. The Officers’ Warrantless into protection Fourth Amendment offers no Defendant’s Home to Abate Loud against entry government into a home unless Music Was Not “Unreasonable” Un- entry purpose performing is for the of Amendment. der the Fourth traditional “search” or “seizure.” For exam- 1. Warrantless Entries Under the Plain Court, ple, Municipal in Camara v. 387 U.S. Language of the Fourth Amendment 523, 526, 534, 1727, 1729, 1733, 87 S.Ct. question The central we confront (1967), L.Ed.2d 930 the Court found that an appeal is whether the Canton inspection possible for viola- administrative Fourth violated the Amendment to the Unit- city’s housing “signifi- tions code was a they ed States Constitution when entered upon protected cant the interests intrusion[ ] securing a Defendant’s home without first by holding, In the Fourth Amendment.” so question, In warrant. order resolve this expressly the Court overturned its earlier naturally language we look first to the of the Maryland, ruling in Frank v. 359 U.S. Amendment itself: 804, 809, (1959), 3 L.Ed.2d 877 S.Ct. right people inspections to be secure administrative “touch houses, effects, persons, papers, upon periphery important most of the their and by against safeguarded unreasonable searches and sei- interests the Fourteenth zures, violated, in- protection against shall not be and no official War- Amendment’s issue, cause, upon probable rants shall but trusion.” The Camara Court reasoned that affirmation, by implicate supported par- Oath or and official intrusions of sort ticularly describing place Fourth values: to be Amendment press. but relied on the as the instead granting sup- basis for Defendant’s motion to crime, encompassed by the Fourth inspection are agree that a routine

mayWe private proper- condition of physical Amendment. typi- than the intrusion ty is a less hostile 1948; see also 436 U.S. at fruits and for the policeman’s search cal Ass’n, Railway v. Labor Executives’ Skinner rea- instrumentalities of crime. For this 1402, 1413, 602, 617, alone, great differed from Frank son (1989) (holding drug L.Ed.2d 639 cases which Fourth Amendment bulk of testing employees gov railroad is alcohol But by this Court. considered have been Amendment); by the Fourth New erned that the Fourth Amend- agree cannot 691, 693, 699, Burger, York inspection at stake these ment interests surely It merely “peripheral.” is cases are (finding governs that the Fourth Amendment say that the individual anomalous to junk fully by search of an automobile protected a warrantless private property are his T.L.O., the in- yard); Jersey Amendment when the Fourth New criminal behavior. suspected 333-36, 105 dividual L.Ed.2d 720 instance, law-abiding the most For even (1985) (holding that the Fourth Amendment very tangible interest limit- citizen has a by public applies to searches conducted under which the ing the circumstances officials). school may by sanctity home be broken of his Thus, matter, in the instant the ac authority, possibility for the official tions of the Canton officers cannot guise entry under the of official criminal altogether escape scrutiny under the personal threat to is a serious sanction Amendment, security. accepting regardless of whether those ac family And even premise, in- abating rather remarkable primarily Frank’s were directed at loud tions kind we are here consider- spections of the Indeed, enforcing than noise rather the law. jeopardize “self-protection” ing do in fact contrary Camara leaves no room for a con property owner. Like interests clusion. Because Defendant was cited fire, health, laws, regulatory most disturbing peace in violation of a Canton enforced criminal housing codes are ordinance, ultimately the officers’ cities, discovery processes. some purpose. served a law enforcement Conse inspector leads to a crimi- violation quently, entry challenged Defendant’s complaint. nal “self-protection” interests as described in Ca 530-31, Camara, 87 387 U.S. at S.Ct. mara, thereby implicated the Fourth (footnotes omitted). 1731-32 against types Amendment’s strictures certain recently, Michigan Tyler, government v. 436 of “unreasonable” action. Fur More 1945, 1948, 499, 501, 506, 1942, thermore, 98 S.Ct. progeny U.S. and its dictate Camara (1978), the Court held that 56 L.Ed.2d 486 conclusion that the Fourth the broader applied to the Fourth Amendment the search govern entry Amendment would the officers’ by firefighters in of a furniture store burned entry into Defendant’s home even if that origin the of the blaze. order to determine nor was neither served intended serve The Court stated: purpose law enforcement whatsoever. The person’s in a rea- is no diminution [T]here protections triggered Amendment’s were privacy nor in the expectation sonable of solely by governmental the intrusion into protection Fourth Amendment sim- of the Defendant’s home. ply conducting because the official the Next, any attempt completely divorce firefighter search wears the uniform of a the Fourth Amendment’s Warrant Clause policeman, rather than a or because his inquiry of from our into the “reasonableness” a purpose is to ascertain the cause of fire the into Defendant’s home likewise crime, rather than to look for evidence of a Supreme precedent. Al- runs afoul of Court might or been start- because the fire have express language Fourth though the of the deliberately. ed for administra- Searches appear support of Amendment would such purposes, tive like searches evidence

1513 construction,3 steadfastly re- framed them.... When the Fourth the Court has the Amendment’s two clauses fused to view Amendment outlawed “unreasonable Rather, from one another. the isolation searches” and then went on to define the repeatedly found that the reason- very has authority Court restricted even government intrusion must be ableness magistrate search warrant issued in mind. with the Warrant Clause evaluated give, could the framers said with all the clarity gloss history that a search relationship view of the be The Court’s is “unreasonable” unless a warrant autho- primarily from tween the two clauses derives it, barring only justified exceptions rizes analysis enacting framers’ intent in its necessity. absolute particular, Fourth Amendment. In frequently noted American Court has Rabinowitz, 56, 70, United v. States 339 U.S. repugnance English practice colonists’ 430, (1950) 436-37, 70 S.Ct. 94 L.Ed. 653 issuing general “writs of assistance” to (Frankfurter, J., dissenting). private authorize searches of homes relationship This view of the between the government officials. unchecked discretion Fourth Amendment’s Reasonableness and See, York, 573, e.g., Payton v. New 445 U.S. Warrant Clauses has led the Court 1371, 1378, 100 S.Ct. 63 L.Ed.2d 639 declare, principle as a “basic of Fourth (1980) (“It history is familiar that indiscrimi law,” Amendment that “searches and sei- conducted under nate searches and seizures zures inside home without a warrant are authority ‘general warrants’ were the presumptively Payton v. unreasonable.” framing immediate evils motivated the York, 573, 586, 445 U.S. 100 S.Ct. New adoption of the Fourth Amendment.” (footnote 63 L.Ed.2d 639 omit- (footnote omitted)); United States Chad ted). rule, stating general Pay- this wick, 2476, 2481-82, 7-8, 97 S.Ct. “physical entry ton Court found that Texas, (1977); Stanford against the home is the chief evil which the 506, 509-10,13 476, 481-82, wording of the Fourth Amendment is direct- (1965); Maryland, L.Ed.2d 431 Frank v. 359 ed,” proce- and reasoned that “the warrant 360, 363-65, 804, 807-08, 3 U.S. danger dure minimizes the of needless intru- (1959); States, Boyd L.Ed.2d 877 v. United sions of that sort.” 445 U.S. at 524, 529, (quoting S.Ct. at 1379-80 United States v. (1886). Citing history, L.Ed. 746 Justice Court, United States District forcefully explained why, in Frankfurter his L.Ed.2d 752 view, Reasonable Amendment’s (1972)). inextricably clauses are ness Warrant interrelated: Even where a search or seizure does not residence, private cannot involve into a

One wrench “unreasonable from the has found that Clause searches” text context and Court Warrant govern- upon historic content of Fourth Amendment. bears the reasonableness of the instance, Revolutionary in It the answer of the ment action. For United States Chadwick, 1, 11, 2476, to the evils of searches without v. 433 U.S. 97 S.Ct. statesmen (1977), warrants unre- 53 L.Ed.2d 538 the Court con- warrants searches with scope. in Both were deemed “un- cluded that a warrantless search of a locked stricted under reasonable.” Words must be read with the footlocker was unreasonable gloss experience who Fourth The had of those Amendment. Government instance, tion, they specifically plain language describe 3. For of the Fourth and that things permit places persons searched or the or Amendment seems to a construction un- be However, approach, operate largely der which the two clauses would be seized. under this literal view, nothing say independently. Clause would have In this the first clause the Warrant provide would the sole substantive restriction on about whether a search or seizure is “reason- namely, they presence rea- or whether the or lack of a war- searches that be able" seizures— reasonableness; rather, specify sonable. The second clause would then rant affects its require- only applicable procedural state the substantive and restrictions on the Clause would namely, they sup- (unspecified) event that a warrant is issuance of be ments in the required. warrants-— by ported by probable cause and oath or affirma- only in of ple’s of a warrant should homes secure the discretion

argued that the absence inquiry Crime, in privacy the “reasonableness” officers. even in the not affect occurring is, course, where outside the quarters, searches one’s own are at stake.” significant privacy values society, “less grave concern to and the law al- 6-7, at 2481. The at 97 S.Ct. Court 433 U.S. proper lows such crime to be reached on relying part on the rejected argument, showing. right The of officers to thrust “strong connection between the historical grave themselves into a home is also a and the initial clause of the Clause Warrant concern, not to the individual but to a Amendment, which draws no distinc Fourth society which chooses to dwell in reason- houses, papers, and ef among ‘persons, tion security able and freedom surveil- safeguarding against unreasonable fects’ right privacy lance. When the must and seizures.” 438 U.S. searches is, reasonably yield right of search Thus, concluded at 2482. Court S.Ct. rule, by judicial as a to be decided offi- provides vital safe that the Clause Warrant cer, by policeman not or Government searches, guards against unreasonable agent. enforcement in or out of the home. 433 U.S. at whether States, 10, 13-14, Johnson United 333 U.S. Comma, 9-11, 2482-83; see also 97 S.Ct. at (1948) (foot 92 L.Ed. 436 (find 87 S.Ct. at 1732-33 omitted). purposes straightforward proposition that their con engaged compet- the officer in the often solely duct satisfied Fourth Amendment enterprise ferreting itive out crime. by virtue of its Admit Any “reasonableness.” assumption that to evidence sufficient tedly, great appeal such a claim holds to support magistrate’s a disinterested deter- sense, particularly common under the cir mination to warrant will issue search However, justify making presented in cumstances here. our the officers a search survey without a warrant would of the case law that has identified reduce the nullity peo- shaped Amendment to a fundamental Fourth Amend- and leave the

1515 following involving principles pursuit” leads us to the the “hot ment “risk of dan- ger” exceptions In of a warrant authoriz- aid our rule: the absence resolution of this entry matter. ing the officers’ into Defendant’s

home, the Government must overcome the justification pursuit” The “hot for warrant- entry presumption that this was unreason- entry less into a primarily house derives able. Warden, from the Court cases of Maryland Penitentiary Hayden, “Exigent

2. The Circumstances” 294, 1642, 18 (1967), L.Ed.2d 782 Justification for Warrantless Santana, United States v. 38, Entries 2406, (1976). Hay S.Ct. 49 L.Ed.2d 300 In den, Having principles upon being established the basic informed witnesses that application our an armed robber had that inform of the Fourth entered a home min matter, earlier, police pursued to the instant utes suspect Amendment we next specifically addressing attempting turn to the law into the home without first case Hayden, 297, secure a warrant. the circumstances under which warrantless 387 U.S. at private permitted. “[sjpeed into are 87 S.Ct. at 1645. Because entries homes As here was above, felon, compelled suspected noted we are to start with essential” order “to find a armed, general rule that such warrantless en- within the house into which he had arrived,” run “presumptively police tries are minutes before the unreasonable.” York, 573, 586, Payton v. New 100 the Court concluded that U.S. warrantless (1980). 1371, 1380, entry was reasonable. 387 at S.Ct. U.S. rule, Payton at

stating Court reasoned S.Ct. 1646. The Court reasoned that history require experi- “[t]he that “neither nor this Nation’s Amendment does not police requires disregard delay officers to overriding ence us to the course of an respect sanctity investigation gravely if for the of the home that has to do so would endan ger their been embedded in our traditions since the lives or the lives of others.” 387 298-99, at at origins Republic.” at U.S. 1646. U.S. (footnote omitted). at 1387-88 Santana, Similarly, in upheld the Court

However, Payton’s general entry is not rule into home where the Indeed, defendant, Payton exceptions. suspect drug without in an ongoing transaction, recognized, considering without standing Court itself had been in the door- issue, hand, “exigent may way bag that with paper circumstances” a brown in her but justify a warrantless into a had home. 445 retreated into the vestibule as Subsequent pulled up 100 S.Ct. at 1378. her house and shouted Santana, types “police” exiting cases have addressed the of situations their while vehicle. might present “exigent that circum- 427 such U.S. at 96 S.Ct. at 2410. possible stances.” While it is not to articu- The Court found that the officers’ yet through open late a succinct list of circum- exhaustive door of the defendant’s qualify “exigent,” pursuit,” stances that as we have house constituted “hot and thus was Hayden previously permitted light characterized the situations both under and in justified expectation which warrantless entries are the officers’ “realistic lying general categories: delay within one of four would result in destruction of evi- (1) (2) felon, pursuit fleeing hot imminent dence.” 427 at 2409- (3) evidence, Moreover, pre- destruction of the need to the defendant “was because suspect’s escape, exposed public doorway vent a a risk of view” in the of her house, United danger or others. the Court found she was “not Johnson, (6th States v. any expectation 22 F.3d an area had where she Cir.1994). returning analysis privacy.” Before to our 427 U.S. at 96 S.Ct. at 2409. matter, Noting public of the instant it instructive warrantless arrests were Watson, States v. prior permitted United review some cases that have considered under 820, 411, scope exigen- the nature and of 423 598 these various U.S. 96 S.Ct. 46 L.Ed.2d (1976), the Santana Court reasoned that particular, it cies. we find that certain cases 1516 ously recognized, suspect to and concluded none to allow a

would be anomalous entry by fleeing applied to a warrantless into a home in public simply arrest a lawful evade 42, apparently driver 427 at 96 search of an inebriated residence. U.S. private into a off road who had swerved his automobile at 2409. S.Ct. away and then walked from the scene. The danger” “risk of exi- Turning to the next rejected summarily most of the Court State’s that the Court gency, we discover appeals exigent circumstances: to rationale for frequently cited this has most justify by attempts to the arrest State in cases where the Gov- entries warrantless doctrine, relying hot-pursuit on the on the something than a acting in other ernment is safety, public to and on the need to threat capacity. For law enforcement traditional petitioner’s preserve evidence of the blood- 499, Tyler, Michigan v. 436 U.S. example, case, the facts of this alcohol level. On 1950, 509, 1942, 56 L.Ed.2d 486 98 S.Ct. however, pursuit the claim of hot is uncon- (1978), recognized “[a] burn- the Court vincing no immediate or because there was clearly presents exigency ing building petitioner pursuit continuous proportions to render a warrantless sufficient ” Moreover, the scene of a crime. because Likewise, in entry Camara v. ‘reasonable.’ already petitioner had arrived Court, 523, 1727, Municipal 387 87 S.Ct. U.S. and had abandoned his car at the scene of (1967), a 930 the Court noted 18 L.Ed.2d accident, remaining there was little re- holding limit its that warrants are Hence, safety. public threat quired searches: for administrative only potential emergency claimed holding emphasizes the con Since our peti- State was the need to ascertain the reasonableness, trolling noth standard tioner’s blood-alcohol level. today ing say is intended to foreclose without a war prompt inspections, even 753,104 at at 2099. U.S. S.Ct. rant, traditionally upheld that the law has Turning to the State’s claimed need emergency See North Amer situations. evidence, preserve the Welsh Court found City Storage Chicago, v. ican Cold Co. exigency sufficiently that this was not com- 101, 306, 53 L.Ed. 195 211 U.S. 29 S.Ct. justify pelling under the facts of the case to (seizure food); of unwholesome Jacobson into a home. 466 U.S. at Massachusetts, 197 v. Commonwealth of 754, 104 S.Ct. at 2100. The Court’s determi- (com 11, 358, 49 L.Ed. U.S. minor, primarily nation rested on the non- vaccination); pulsory smallpox Compagnie criminal traffic nature of the offense the en- Navigation Vapeur Francaise de Lou tering police investigating. officers were Health, Board isiana State 2095-96, at at 2100.4 S.Ct. (health 811, 46 L.Ed. 1209 S.Ct. The Court reasoned that the seriousness of Truax, quarantine); Kroplin v. 119 Ohio underlying weight offense affects the (summary destruc St. 165 N.E. 498 governmental being interest served cattle). tion of On the other tubercular intrusion; because this interest is at an hand, in the case of most routine area offenses, gov- ebb in arrests for minor “the inspections, compelling urgency there is no usually ernment should be allowed to make inspect particular time or on a at a only such arrests with warrant.” 466 U.S. particular day. Thus, at 2098. Court 387 U.S. at 87 S.Ct. at 1736. important concluded that “an factor to be Wisconsin, determining Finally, in considered when whether Welsh 740, 742-43, 753-54, exigency gravity underly- exists is the (1984), ing being for which the Court offense the arrest surveyed exigencies previ- it had made.” 466 at 2099. the various eventually serving solely investigate "nonjaila- petitioner 4. The Court noted that the charged with a criminal misdemeanor be- ble traffic offense that constituted a civil prior cause of his However, record of traffic offenses. applicable violation under the state law.” 466 entering did not because the U.S. at 746 n. 104 S.Ct. at 2096 n. 6. record, prior know of this the Court treated the

1517 erty. primary governmental The interest acknowledge the hazards of readily We prevent even the unintention- at stake is to sweeping generalizations about venturing development al of conditions which are inquiries called for under fact-specific Nevertheless, public safety.... health and hazardous several Fourth Amendment. determining particular whether a in- emerge our sur- principles underlying spection is reasonable —and thus in deter- regarding “exigent cir- vey case law First, mining probable there is finding exi- whether cause the cases cumstances.” inspection issue a warrant for that uniformly the need cite gent circumstances —the inspection weighed for in by government personnel, need must be action prompt goals delay a warrant terms of these reasonable of code to secure and conclude circum- enforcement. unacceptable under would be

stances. 96 L.Ed.2d U.S. S.Ct. at 757, 770-71, at 1646; See, 2410; Hayden, (1966). e.g., Schmerber 86 S.Ct. Santana, 1826, 1835-36, 427 U.S. California, at at 87 rize a plied probable It has been ^[******] “synthetic criminal cases would be to autho- cause suggested test from search warrant” and that so to the standard vary ap- Next, considering exigent when whether thereby protections to lessen the overall present, has circumstances are the Court But the Fourth Amendment. we do adopted “balancing” approach, frequently agree. procedure designed warrant is being governmental interest weighing the guarantee pri- that a decision to search by against intrusion the individual property justified by served vate a reasonable protected if that would be a warrant governmental interest interest. But reasonable- required. example, For the Welsh were If a ness is still the ultimate standard. “balancing of interests” justifies relied on this public Court valid interest the intrusion that, concluding gov- approach in because contemplated, probable then there is cause necessarily compel- ernment’s interest is less suitably to issue a restricted search war- offenses, ling involving minor cases rant. 'underlying im- gravity of the offense is “an at 87 S.Ct. at U.S. deter-

portant factor to be considered when (footnote omitted). and citations mining any exigency exists.” whether recently, Railway More in Skinner v. Labor Welsh, 750-53, at 466 U.S. at 104 S.Ct. 2098- Ass’n, 602,109 Executives’ (1989), the Court not “balancing approach of interests” de- This that, special [gov ... ed faced with “[w]hen principally from the Court’s rives needs, we have not hesitated to ernmental] Camara, supra. Having conclud- decision privacy governmental and inter balance the required that warrants are for administra- ed practicality of the warrant ests to assess the inspections, the next had tive Camara Court probable requirements par in the cause “probable to articulate a cause” standard 619, 109 S.Ct. ticular context.” 489 U.S. at provide meaningful protections that would pur Upon juxtaposing at 1414. the various legitimate such defeating the aims of without poses requirement the warrant served govern- inspections. Noting that different governmental served against the interests public are served when offi- mental interests testing employ drug alcohol and of railroad investigations versus cials conduct criminal ees, that “in Court determined the Skinner inspections, rea- administrative the Court requirement im on a warrant would sistence specially showing of soned that a tailored pede the achievement of the Government’s admin- “probable cause” would suffice objective.” 489 istrative context: Buie, 1416; Maryland also see 1093, 1096, 108 L.Ed.2d pursuant a criminal

Unlike the search (1990) (“[I]n reasonableness, determining inspec- investigation, [administrative] indi the intrusion on the programs at here are aimed at we have balanced tion issue against interests securing city-wide compliance mini- vidual’s Fourth Amendment with in- legitimate governmental private prop- promotion its physical mum standards for 1518 Wisconsin,

terests.”); Supreme forgo 483 U.S. has led the Court Griffin 868, 872-77, 3164, 3168-70, 97 requirement modify 107 S.Ct. warrant or the standard (1987) (citing uphold cause, L.Ed.2d 709 Camara establishing probable the absence probationers’ searches of ing warrantless strong privacy individual interest has T.L.O., 325, homes); Jersey v. 469 New U.S. uphold likewise led the Court to warrantless 733, 337-43, 105 740-43, 83 720 L.Ed.2d entries under some circumstances. For ex (1985) (adopting balancing ap Camara’s ample, 594, Dewey, in Donovan v. determining that warrantless proach in 602, 2534, 2539, 101 S.Ct. 69 L.Ed.2d 262 by school authorities need not be searches (1981), the Court held that in warrantless cause). probable supported by traditional spections pursuant of mines to the Mine Finally, applying balancing ap- Safety this and Health Act did not violate the suggested exigent proach, has support the Court Amendment. of this con likely will more be found clusion, circumstances expecta the Court noted that “the privacy where the traditional of the home has privacy of tion that the owner of commercial way. For compromised been some exam- property enjoys property sig in such differs ple, the Santana Court found the defen- nificantly sanctity an accorded indi any expecta- dant had forfeited reasonable 598-99, vidual’s home.” 452 U.S. at privacy by moving doorway into the of tion of 2538; Op S.Ct. at see also South Dakota v. house, thereby exposing pub- her herself “to 3092, perman, 428 U.S. 96 S.Ct. view, hearing, speech, lic and touch.” Santa- (citing 49 L.Ed.2d 1000 the di na, at 427 U.S. at 2409. Once expectation privacy minished when travel- spotted officers the defendant in this justification ling in a automobiles as for war- place, regain “public” she could her ex- searches); inventory rantless United States pectation privacy and reinstate the war- Johnson, (6th Cir.1994) 22 F.3d requirement retreating into her rant (Suhrheinrich, J., dissenting) (arguing that a home. 427 U.S. at 96 S.Ct. at 2409- young girl apart defendant who held a in his 10. against ment her will had “forfeited whatever had”). privacy on an expectation This focus element of privacy reasonable he “exigent circumstances” determination summarize, pre To our review of the recogni derives from the Court’s governing “exigent cedent our circum “protects tion that the Fourth Amendment inquiry stances” reveals that three consider privacy against individual certain kinds of First, play key ations roles. we must ask governmental intrusion.” Katz v. United whether the Government has demonstrated a States, 507, 510, need for immediate action that would have (1967). In Justice Harlan’s if been defeated the Canton formulation, oft-quoted an individual can in had taken the time to secure a warrant. protections voke the Fourth Amendment’s Next, identify governmental we must in only by satisfying requirement, a “twofold being terest served the officers’ into person first that a have exhibited actual home, Defendant’s and ask in whether that (subjective) privacy and, expectation of sec sufficiently important justify terest is ond, expectation society that the be one that entry. Finally, weigh we must prepared recognize is as ‘reasonable.’” governmental against interest Defen (Har Katz, 389 U.S. at 88 S.Ct. at 516 maintaining privacy dant’s interest in lan, J., concurring). Although Har Justice his and ask whether Defendant’s con is, lan noted that “a man’s home for most duct somehow diminished the reasonable ex place expects purposes, privacy,” where he (Harlan, J., pectation privacy normally enjoy. at he would concurring), Accordingly, questions. turn the Katz Court nevertheless rec we now to these ognized person knowingly “[w]hat ex Exigent Circumstances Justified the poses public, even in his own or home Entry office, Warrantless into Defendant’s subject is not a of Fourth Amendment Home in protection.” This Case. 88 S.Ct. at 511. Having completed survey balancing approach, just Under the our of the case as an appeal matter, compelling governmental to a interest law and returned to the instant we at odds with claim of fixed and immut that none of the tradition- note at the outset exigencies. list of established More exigent circumstances able ally recognized over, case-by- ignore such a claim would the facts of this squarely presented under development pur- fact-specific hot of the ex Plainly, have here neither case case. isting categories exigent immi- of circumstances. fleeing the threat of felon nor suit presently recognized exigencies of Nor was it None the destruction of evidence. nent status; any special police officers to can claim constitutional necessary for the Canton instead, prevent suspect’s product in a each was a of distinct and quickly act order to independent analysis particu of the facts of a escape. light underlying lar in of case light In of the “noise assault” principles. v. Amendment See United States subjected neighbors had his which Defendant (7th Cir.) (“[T]he Acevedo, 68, 627 F.2d 70 night, argu in middle of the the officers the array settings may limitless of factual ably appeal danger” could to the “risk analysis.”), against checklist-type arise caution a justify entry. rationale to their warrantless denied, 1021, rt. 449 101 ce music, course, here, “danger” loud the Of (1980). 587, 66 L.Ed.2d 482 dangers not rise to the level of the does Therefore, dictates, if the situation we are instance, prior in For in recognized cases. fashioning exigen- precluded not a new Johnson, 674, 22 v. F.3d 680 United States cy justifies the warrantless into (6th Cir.1994), police officers we held that Specifically, Defendant’s home. under the lawfully apartment an without a had entered case, particular facts of this we must consider fourteen-year-old in order to free a warrant ongoing highly whether an intrusive being against her will. girl who was held neighborhood’s peace a in the mid- breach of earlier, Similarly, Supreme the as noted night “exigent circum- dle of the constitutes recognized Michigan Tyler, in v. 436 Court stances,” justifies a and therefore warrant- 1942, 1950, 56 L.Ed.2d entry. always, less As we must make this (1978), that warrantless entries into 486 light in determination of Fourth Amendment buildings clearly burning are “reasonable.” principles precedent, and we must be here, contrast, while In Defendant’s conduct community of the needs of the mindful quiet certainly peace a breach of the society’s expectation legitimate the role of neighborhood, pose a substantial the did not police. the safety. neighbors’ or immediate threat to his Thus, comfortably “risk cannot invoke the we precedent Although we have found no ad- Mincey in danger” rubric this case. Cf. question dressing precise whether 2408, Arizona, peace may constitute ongoing breach of the (declining L.Ed.2d 57 290 circumstances,” di- “exigent the Government adopt categorical exception to the warrant Lanthier, People v. 5 rects our attention to requirement for searches of the scene of a 297, Cal.Rptr. 488 P.2d 625 97 Cal.3d homicide). R. La- generally 3 WAYNE See (1971), which California 6.6(a) § FAVE, AND SEIZURE SEARCH ongoing that an nuisance Court concluded ed.1996) (3d involving (surveying cases war justified intrusion into a stu- a warrantless emergency aid and rantless entries to render Lanthier, Riley, Joseph dent’s locker. assistance). services at Stan- supervisor of maintenance observation, however, University, complaint “of a not ford received does end

This emanating from somewhere Although acknowledge that noxious odor inquiry. our we hall,” had vomited neatly study as if “someone do not fit into the facts of this case Cal.Rptr. at 488 P.2d “exigent room.” 97 existing categories of circumstances,” been detected the at 626. The odor had first are nonetheless con- day, to air out the room existing categories previous and efforts that these do vinced Cal.Rptr. 97 at 488 in which had not succeeded. occupy entire field of situations Riley Using key, justified. at 626. a master entry may As an P.2d a warrantless be study matter, began open attached to the lockers the Fourth Amendment’s initial carrels, eventually traced flatly hall and he language of broad “reasonableness” 1520 defendant, lay suppressing it would un-

smell to a locker used have been justifiable. university. Cal.Rptr. at the at student opening P.2d at 626. After Cal.Rptr. P.2d at 628.5 locker, Riley discovered that defendant’s Lanthier, Beyond we have found two other "within; emanating from a odor was briefcase cases that have addressed the Fourth briefcase, opening that he discovered 38 upon arising Amendment concerns from a war- marijuana. Cal.Rptr. packets ongoing rantless to abate an nuisance. P.2d at 626. When the defendant later cases, police apart- In both officers entered briefcase, to reclaim his he was returned receiving ments without warrants after com- arrested; subsequently sup- moved to he plaints leaking apart- that water was into marijuana product press as the of an Boyd, ments below. United States 298-99, Cal.Rptr. illegal at 488 search. 97 (S.D.N.Y.1976); F.Supp. 694 State P.2d at 626-27. (Me.1995). Dube, In 656 A.2d 339 both cases, leaking the courts concluded that wa- Supreme The California Court affirmed sufficiently safety ter threatened the of the the trial court’s denial of the defendant’s jus- neighboring apartments inhabitants of to suppress. Cal.Rptr. motion to 97 at 488 tify a Boyd, intrusion. 407 particular, In P.2d at 629. the court found 695; Dube, F.Supp. at 655 A.2d at 340. confronting the situation the mainte- Moreover, impor- both courts relied on the supervisor “emergency” nance fell within the tant fact that the officers did not enter the exception requirement, to warrant apartments purpose searching for the prompt inspection that a of the defendant’s contraband, acting pro- but instead were to locker therefore was authorized under the wellbeing tect the of the immediate commu- Cal.Rptr. rationale of Camara. 97 at 695; Dube, nity. Boyd, F.Supp. at explained: court 488 P.2d at 628. The Thus, cases, A.2d at 340.6 in both the courts “compelling In the case at such a bar suppress incriminating to refused evidence— urgency” recognized in was [as Camara \ Boyd, squalid in rifles conditions in Dube— clearly shown. There had indeed been a plain that was discovered view as the complaint” “citizen about the malodorous sought officers to track down and abate the hall, permeating study smell the entire ongoing 695; Boyd, F.Supp. nuisance. at Riley no the smell was less noticeable to Dube, 655 A.2d at 340-41. investigate. when he arrived to It was undertake, therefore reasonable for him to extent, therefore, To the that the ease capacity supervisor, his of maintenance analogous law addresses situations to the one “prompt inspection” of the carrel confronted, area prece with which we are these purpose discovering abating for the suggest night dents that a late disturbance of And the nuisance. inasmuch as the stu- peace might present exigent well circum already dents entitled to use the room had justify stances that would the Canton offi by been disturbed this offensive odor entry cers’ warrantless into Defendant’s addition, throughout preceding day, poli- further de- home. In we believe that the rejected Riley court person also defendant’s claim sion that "did what normal Riley, having circumstances, abated the immediate nuisance would have done under those hall, by removing study the briefcase from the having perform the same duties to as he had." improperly opening acted the briefcase rather Cal.Rptr. at 488 P.2d at 629. simply storing than belongings typically it where unclaimed student kept. Cal.Rptr. were at 6. The Dube court went so far as to hold that the 300, 488 P.2d at 628. The court noted that did officers not conduct a Fourth Amend- storing the briefcase "would not have eliminated by accompanying apartment ment "search” merely the odor but would have transferred it to building’s apartment custodian into the and ob- part library building.” another 97 Cal. Dube, serving "plain whatever was in view.” contrast, Rptr. by 488 P.2d at 629. In 655 A.2d at 340. Camara seems to foreclose briefcase, opening Riley reasonably sought to result; such a broad it would be more accurate precise "determine the cause of the smell so as to say urgent that a warrantless under permit such proper disposition offending ob- implicates ject.” Cal.Rptr. circumstances but does not violate the 488 P.2d at 629. The agreed court thus with the trial court’s conclu- Fourth Amendment. Next, we find that the officers entered the various traditional underlie eies which pre- Defendant’s home order vindicate result. We exigencies to this same lead compelling governmental To be interest. important considerations viously three cited sure, Welsh, supra, weight teaches that the inquiry: typical “exigent circumstances” in a governmental should be mea- interest (1) government action whether immediate severity part sured in of the offense (2) governmental required, whether matter, investigated. being the instant compelling justify sufficiently interest was Defendant was cited for a civil violation intrusion, and whether the a warrantless might of a Canton noise ordinance. This expectation privacy was diminish- citizen’s suggest governmental that no vital seem principles way. Applying these ed in some interest was served the warrantless case, con- we find that each of these in this into Defendant’s home. warrantless en- indicates that the siderations justified by try home was into Defendant’s However, we believe that the Welsh exigent circumstances. analysis has less relevance one moves away from traditional law enforcement func First, un Canton tions and toward what the Court in which doubtedly confronted a situation “community earetaking has referred to as The officers testi time was of the essence. Dombrowski, Cady functions.” they arrived at Defendant’s resi fied that 441, 2523, 2528, 37 L.Ed.2d 706 night response in in middle of the dence the Johnson, (1973); see also United States v. neighbors, they complaints from and that to — (6th Cir.1993), denied, cert. F.3d away loud music at least a block could hear U.S.-, Upon arrival at the the home. their (1994). weight gov To determine the scene, they by an irate were confronted solely in interest at stake this case ernmental neighbors. Had the group pajama-clad of City penalty to the minor the of reference warrant, attempted to secure a it is officers imposes for violations of its noise Canton emanating from that the aural assault clear ignore a crucial distinction ordinance would una home would have continued Defendant’s and the instant case. Unlike between Welsh Thus, significant period of time. bated for a Welsh, a in the officers here did not enter holding re if on to the warrant we insist purpose questioning private home for the of circumstances, inwe quirement under these suspect searching for of a a or evidence neighbors Defendant’s that “mere” effect tell suspected offense. Because their aim in the disruptive noise the middle of loud suspected track down a violator not to “enough” emergen an night pose not of does ordinance, inappropriate we find it to local response, per cy to warrant7 an immediate by looking gauge government’s the interest “only” haps a situation threat because such that ordinance. tranquility than neighbors’ the rather ens Rather, by entering Defendant’s residence property. We doubt that this their lives or purpose locating and abat- comport neighbors’ for the limited of would with the result nuisance, sought restore ing Fur the officers understanding of “reasonableness.” enjoyment ther, neighbors’ peaceful of their nothing in the Fourth Amend the because neighborhood. In view of the homes and requires us to set aside our common ment communities, sense, importance preserving our that we decline to read Amendment’s insig- that this is so requirements we do not think interest and warrant “reasonableness” justifica- respons that it can never serve as authorizing timely governmental nificant entry into a home. To involving life-threatening tion for a warrantless only in es cases recog- contrary, progeny the Camara and its danger. justify "war- themselves that choice of the the circumstances note, aside, 7. We as an our —or displacing the rant” —the in this context is instructive. thereby require- word "warrant” entry, obtained. linguistic that formal authorization be illustrates with ment Our use of that word Quite com- and in accordance with our circumstances the between simply, relationship precision meanings understanding of the dual justify order and the monsense that an without formal showing word, the the circumstances themselves which issues itself, provide formal order upon "warrant.” instance, the of such circumstances. In former important governmental governmental being nize that interests interest served may in against be at stake even the absence of life- the individual’s interest in remain- See, T.L.O., e.g., circumstances. 469 ing governmental or-death free from In intrusions. 340, 105 (citing at 742 conduct, U.S. at school’s light of Defendant’s course of maintain “legitimate need to an environment degree pri- find that he cannot claim the learning place”); in can take see which also vacy protection generally attaches Brown, F.3d Katz, United States private dwellings. See (7th Cir.1995) (“We do not think that (“[T]he 351, 88 S.Ct. at 511 Fourth Amend- apartment, outside an police must stand de protects people, places. ment aWhat spite legitimate concerns about the welfare of person knowingly exposes public, they occupant, unless can hear office, in even his own or home is not a screams.”). Indeed, law, under Ohio Canton subject protection.”). of Fourth Amendment expressly charged are with expectation privacy Just as one’s dimin- duty “preserve peace.” Ohio Rev. beyond doorway, ishes as he ventures his addition, § Ann. Code 737.11. Canton’s Santana, supra, see 427 U.S. at prohibiting enactment of ordinance use of Defendant here undermined his “any noise-making device” such manner right to be left projecting alone loud peace good neigh or “the order neighborhood noises into the in the wee disturbed,” Canton, Ohio, borhood General morning, thereby significantly hours of the 509.12, § Code shows that the Canton com disrupting Indeed, neighbors’ peace. his munity great importance attaches to its citi ease, protect we cannot in- Defendant’s maintaining peaceful neigh zens’ interest maintaining privacy terest of his borhoods. diminishing neighbors’ home without in- his maintaining terests in privacy of their conclude, therefore, We Accordingly, homes. gov- we find that the in governmental immediately abating interest preserving peaceful ernmental interest in a ongoing by quelling an nuisance loud and community all compelling is the more when disruptive neighborhood in a residential noise against substantially balanced Defendant’s sufficiently compelling justify is to warrant- maintaining priva- weakened interest in the less under intrusions some circumstances. cy of his home. Brown, 455, 471, Carey v. Cf. 2286, 2295, (1980) S.Ct. Finally, in strictly gov a case not sanctity (“Preserving the of the the by precedent, erned necessarily must re one retreat to which men and women can principles visit the fundamental underlying repair escape from the tribulations of their seen, the Fourth Amendment. As we have daily pursuits, surely important an is val that unwavering Amendment defines two State, ue.”); Bies v. 76 Wis.2d First, standards. its Warrant Clause com (1977) 461, 468 (finding early N.W.2d that the that mands the Government shoulder the morning investigation complaint of a noise is heavy justifying any burden of warrantless “part ‘community of the caretaker’ function private Second, into a home. its Rea which, police perhaps lacking of the while any sonableness Clause commands that Gov respects urgency some the of criminal inves intrusion, ernment whether authorized a tigation, important is nevertheless an not, warrant or be reasonable. We conclude role”). part partic essential that the Canton officers’ warrantless ular, compelling governmental sup a interest entry into Defendant’s home violated neither where, ports here, warrantless entries as of these principles. constitutional requirement strict adherence the warrant subject community continuing would ato First, aspects we find that certain disturbance an pe noxious extended the instant prominently matter also featured serving any riod of time without apparent in eases in which the Court has purpose. approved government intrusions.

Moreover, earlier, among as discussed Ca Foremost these common features is progeny mara and its any purpose instruct us to balance the absence of a warrant could arson”). Thus, slightest not the there is noth- safely be said that It can have served. that conduct would gained if a disinterested officers’ indication ing have been would they if evaluated different had secured independently had been have magistrate claim, on their first- based Defendant’s resi- entering officers’ warrant before Canton obvious, ongo- hand, open, other if the officers had hand observation On the dence. emanating conditions, loud was warrant, neighbors that noise ing Defendant’s un- sought a magistrate would home. A Defendant’s doubtedly deprived from would have been reject a claim accept or such have to either signifi- for a quiet enjoyment of their homes face; to draw was no need there on its on a warrant period of time. To insist cant ambiguous evidence. Nor inferences pro- circumstances would be to under these meaning- provided have magistrate could important com- rigid formalities over mote whether the timely as to yet assessment ful privacy munity legitimate interests and the ongoing sufficiently urgent and situation neighbors. of Defendant’s interests Compare entry. an immediate justify Moreover, although the Warrant Clause Michigan Tyler, governmen certainly is not irrelevant to the 56 L.Ed.2d here, that clause never intrusion at issue tal a warrant (rejecting argument an implicated degree when to a lesser theless no would serve building search a burned as “communi police officers act their roles magis- finding that a purpose, and instead ty caretakers.” Because the Canton factors as “[t]he consider such could trate competitive engaged in “often were not entries, scope of the prior number crime,” Johnson, ferreting enterprise of out search, proposed to day it is the time when there supra, 333 U.S. at fire, made, lapse of time since the be they might is less cause for concern own- building, and the use of the continued rashly improper decision. intruders”). made have against it to secure efforts er’s that, despite is it tenable to insist Neither most, specified have a warrant could At role, community caretaking the officers their thereby entry, permissible scope cause,” “probable have established must was nar- intrusion ensuring that officers’ context of criminal term is used purpose of as- rowly tailored to the limited they investigations, could enter De before loud music and certaining the source of the part on this dis home. Based fendant’s Clifford, 464 Michigan v. quelling it. See investigations and between tinction criminal 641, 649, 78 L.Ed.2d 104 S.Ct. U.S. intrusions, governmental sorts of other 507-08, (1984); at Tyler, 436 U.S. administrative Supreme Court has allowed However, nothing in the rec- at 1949. S.Ct. something less than tra to issue on warrants en- suggests that the officers’ before us ord Camara, see, cause, e.g., probable ditional that purpose, or try exceeded that narrow 1735-36, 537-38, at at “pre- under a they Defendant’s home entered altogether occasionally dispensed with has when in fact their of noise abatement text” see, T.L.O., e.g., requirement, warrant perform a law enforce- was to intent actual 742; 340, 105 Opperman, at at or a search function such as an arrest ment 3096-97, so at 96 S.Ct. 428 U.S. Compare Clifford, evidence crime.8 governmental interest is long a substantial as (reasoning at 649 that an im Having found being subserved. that, investigators previously had de- because caretaking” mo “community interest portant originated in a that a fire had termined ease, entry in this we the officers’ basement, upper tivated “the search home’s obtain a war that their failure conclude ... have been portion of the house could entry that unlawful.9 not render crime of does gather evidence of the rant a search to below, of this Moreover, willing under the facts a warrant that issue discussed we believe so, Defen- to undermine entering case. If this is it seems Defendant’s conduct after officers’ entry was here that the warrantless entirely dant’s claim with their claimed was consistent home disingenuous, to Surely be improper. we would loud music. to locate and silence the intent least, holding the Canton officers say that unreasonably by failing to make sug- argument, acted for Defendant 9. At oral counsel futile a warrant. judge been effort to obtain gested would have that no state court importantly, Most community we find that the would understandably have officers’ decision to enter Defendant’s home poor viewed the officers’ police actions as satisfies the standard of “reasonableness” Stout, 1437, 1442 work.” Murdock 54 F.3d that (9th Cir.1995). is the touchstone of the Fourth Quite clearly, nothing in the Admittedly, Amendment. the case law (and requires police Amendment demonstrates that the Fourth Amendment’s neighbors) idly observe and tolerate a requirement of “reasonableness” is not sus late-night, ongoing nuisance to the communi ceptible entirely straightforward of an ty sought while a warrant is and obtained. commonsense construction. For reasons argues Defendant that the officers ranging pragmatic, from historical to courts could have taken other measures short of have imbued principle the fundamental home, entering his calling such as on the concepts “reasonableness” with various such telephone or activating squad their lights car expectation privacy, exigent as the cir However, or pure siren. it speculation is cumstances, and the acknowledge like. We whether of these additional measures conceptual these various might devices might have subsequent rendered necessary well be ensure the under unnecessary; indeed, given the volume of lying purposes of the Fourth Amendment emanating the music from Defendant’s myriad are achieved under the of circum home, it seems doubtful that the sound of a confronting stances law person enforcement ringing siren or telephone gained would have Nevertheless, nel. judi we believe that the Defendant’s attention. point, More to the upon cial edifice erected that Amendment emphatically reject the notion that a war should not be allowed to obscure the essen rantless permissible only when all requirement tial officers act rea conceivable alternatives have been exhaust sonably they upon when intrude an individ ed. require Such a rule ignore would us to privacy. ual’s day-to-day and minute-to-minute de case, simply we are unable to iden- officers, upon police mands and to instead tify any part unreasonable conduct on the evaluate their conduct under a standard es the Canton officers. When confronted tablished with hindsight. the benefit of See with a loud disturbance the middle of the Brown, United States v. 64 F.3d night, attempted the officers to abate the (7th Cir.1995) (“An officer on the beat must through nuisance various measures short of be snap allowed latitude to judgments, make entering including Defendant’s re- subject requirement of reasonable peated banging on Defendant’s front door ness.”); Pugh, Gerstein v. cf. tapping on his windows. When these initial proved efforts unavailing, upon (recognizing, in the context of discovering that the back door to Defendant’s arrests, legitimacy policeman’s of “a on- knocked, home open, they announced cause”). the-scene probable assessment of presence, their and entered the home The Fourth Amendment does not mandate might search of who someone be able to turn police that flawlessly, officers act only but blaring view, down the music. In our the they that reasonably. act Illinois v. Rodri properly officers escalated their efforts as guez, 177, 185-86, each preceding measure failed to abate the (1990). Indeed, they otherwise, noise. if had done perhaps by leaving the scene to obtain a lightly We do not abrogate the constitu- warrant, “we are convinced that citizens tional presumption police that officers must Alternatively, perhaps any counsel for Defendant quell take sic, blaring further action to the mu- suggest means late-night to that Defendant's dis- therefore, neighbors, and Defendant's would neighbors' peace turbance of his was not suffi- have been forced to tolerate that disturbance ciently egregious justify to issuance aof warrant. indefinitely, perhaps night. for the rest of the If consequences suggestion that flow from this a warrant cannot be obtained under these cir- upon failing gain are clear: to Defendant’s atten- cumstances, only we can conclude that the war- by banging tion on his door and windows and rant type mechanism is unsuited to the of situa-

loudly announcing presence, their the Canton presented tion in this case. utterly powerless officers would have been to most, argued perhaps be At it could private entering a before a warrant secure pur exceeded the narrow however, that the officers end, we would In the residence. entry by looking in pose of their warrantless adjudge the extremely con- difficult it find despite apparent their basement Defendant’s police officers as “unrea- of the Canton duct the source of the loud music awareness that something those pointing to without sonable” floor.12 located on the second Quite must have differently. been have done officers should Johnson, v. F.3d See United States in the Fourth nothing find simply, we Cir.1994) (6th (finding warrantless that disapprove of us to that leads Amendment being to free a victim held entry of a home Ac- of action.10 chosen course the officers’ lawfully expand be against her will could the officers acted cordingly, we find that closets). of the home’s a search ed include totality of the circum- reasonably the under However, sup at the officers testified faced, the therefore hold they we and stances they preferred hearing that pression entry into Defendant’s warrantless that their turn down occupant an who search for could Fourth violate the Amend- did not home music, taking into than matters the rather ment.11 for the stereo searching their own hands They fur Lawfully it down themselves. turning Entered and the Officers C. Once Home, that, an in their search for They Enti- ther testified Were Defendant’s They they proceeded Defendant’s Any occupant, into Evidence tled to Seize They light only upon observing that was View As basement in Plain Found doorway. Quell emerging open basement Music. Sought the Loud To any response to their lack of Given the the Canton Having that determined ongoing banging, given and and shouts lawfully Defendant’s entered police officers music, have could blaring and officers briefly the re only address need we in the that was logically surmised someone First, appeal. because maining issues on enter the had not heard them basement but marijuana plants in officers discovered house. base they Defendant’s entered plain view entirely explanation find the officers’ incriminating We ment, nature and because entirely reason- their conduct plausible, surely apparent evidence this able, any evi- in the especially absence officers, they to seize mari were entitled that the offi- suggesting dence whatsoever obtaining a warrant. first juana without home 128, 141-42, or searched cers Defendant’s entered California, 496 U.S. Horton up turning evidence purpose of 2301, 2310-11, 112 for the 110 L.Ed.2d we con- activity.13 Consequently, (1990). criminal cases, that, simply find in some We reasonable. that the officers' were to 10. if we conclude Even purpose to no Amendment the Fourth Amend- it would serve violated warrantless before ment, suppression require obtain a warrant argued that the could be it immediate, steps taking the facts abate under reasonable would not be warranted evidence nuisance, objectionable highly Having ongoing, case. determined of this just reasonably, a case. not believe that this such do we conclude acted would be served legitimate deterrent function appeal does on We that Defendant's brief note exclusionary here. applying rule United 12. Cf. point, addresses but instead not discuss Leon, States legality question the more fundamental ("[E]ven as- 82 L.Ed.2d entry. the officers' effectively [exclusionary] suming rule that the provides in- some misconduct deters Indeed, across had come even if the officers profession as a the law enforcement centives locating occupant, would it the stereo before the accord with conduct itself in to whole appropriate continue look- arguably to been have Amendment, expected, and should it cannot be whether, light of the ing to determine around objectively applied, reasonable to not be deter stereo, anyone yet apparently unattended loud activity.”). law enforcement emergency See assistance. might need of be in Arizona, Mincey fact-specific emphasize the nature wishWe (1978) (discussing decision, L.Ed.2d 290 not holding. By we do of this this exception the warrant “emergency aid” the "nuisance abatement" to fashion broad mean course, not decide need requirement). Of we general exception rule that warrantless to the presumptively un- this issue. private are into homes entries discovery elude that the officers’ many said, seizure As professor law has “Hard marijuana plants in Defendant’s base- make bad precisely eases law.” It because justified ment was “plain under the opinion’s view” of this far-reaching potential to un- doctrine. sanctity dermine the of the home that I find that I must dissent.

Finally, question remains there the wheth- police er the Canton officers properly ob- problem The initial majority’s with the tained Defendant’s consent searching before opinion is its insistence that the Fourth his bedroom closet and discovering a sawed- Amendment’s “reasonableness” clause dwarfs shotgun. off Given its determination that requirement. the warrant majority hy- entry unlawful, the officers’ initial was the pothesizes that district did not court need to resolve this on based the Amendment’s division into question. contends, The Government separate two apparently independent dispute, Defendant does that the district parts, the “Reasonableness” Clause and merely suggested, court express- but did not Clause, “Warrant” posit the one could that hold, ly might Defendant have lacked officers’ only the need have been capacity the to consent to a search. More- “reasonable,” and that the absence of a over, the record does any not disclose find- warrant for their does not bear on ings by regarding the court district the se- this inquiry. reasonableness quence of surrounding events discovery the Despite majority’s recognition that this shotgun. light incomplete this approach is not pre- “reconcilable with the record, we order that this matter be remand- judicial vailing construction of the Fourth ed to the court for purpose district Amendment,” majority then constructs determining whether the officers discovered opinion an entire around its view that shotgun in the closet after Defen- “reasonableness” outstrips clause the war- freely given dant had his consent to a thor- requirement. rant When the majority ough search of his home. “decline[s] to read [the] Amendment’s ‘rea- sonableness’ and requirements warrant III. CONCLUSION authorizing timely governmental responses reasons, foregoing For the we conclude only in involving cases life-threatening the Canton officers’ warrantless danger,” ignores it Fourth Amendment entry into justified Defendant’s home jurisprudential principles that have been circumstances, exigent and that the officers’ firmly years. established for subsequent discovery marijuana plants Fourth Amendment jurisprudence recog- justified Defendant’s basement was under protection nizes that the require- the warrant “plain Therefore, view” doctrine. we re- provides ment against police overreaching verse the decision of the district court to give and abuse must way exigencies. to true grant suppress. Defendant’s motion to How- Such circumstances pursuit include “hot ever, because we cannot resolve the issues felon,” fleeing “imminent destruction of evi- surrounding Defendant’s consent to a further dence,” prevention of a suspect’s escape, search present record, under the we remand danger risk or others. Unit- this matter for the district court’s determina- Johnson, (6th ed States v. 22 F.3d tion legality as to the subsequent Cir.1994). In all of “exigent these circum- search. stances,” however, great deal of harm DAUGHTREY, likely Judge, Circuit would result from dissenting. delay in police action, and courts have recognized therefore eleven, At footnote the majority writes: unnecessary warrants are in these in- We emphasize wish to fact-specific na- Refusing stances. recognize the common holding. By decision, ture of this denominator in situations, these majority do not mean to fashion a broad “nuisance elevates the desire to turn down loud music exception abatement” to the general rule “exigent status of circumstance.” that warrantless private entries into homes are presumptively majority unreasonable. comments if a disin- gained have been nothing would independently magistrate had

terested claim. Canton

evaluated * officers’ * * most, speci- have a warrant could At entry, permissible scope of a

fied the intru- officers’ ensuring that

thereby limited narrowly tailored to the

sion was ascertaining of the the source

purpose of it. quelling

loud music majority seems that the the fact

Despite limiting a trifling the benefit

view as

search, goes to the heart function inconve- Although an requirement.

warrant protects our

nience, requirement the warrant investi- unchecked the otherwise

homes from police. authority of the

gative reasons, in an I concur cannot

For these the significance

opinion that reduces I cannot this extent. requirement to

warrant neigh- in the circumstances” “exigent

find emanat- the loud music quell

bors’ desire mere When house.

ing the defendant’s of an the level rises to

nuisance abatement circumstance,” propriety

“exigent by post determina- judged a search facto search, reasonableness

tion of the nulli- a virtual requirement becomes

warrant homes interest our privacy

ty and the neighbors our extent that

exists loudly. cry too

do not Welter, (argued), Jeffrey Terrill Val-

Dave Clinic, Valparaiso, University Law paraiso IN, Plaintiff-Appellant. for DORSEY, Plaintiff- Reginold J. Fedder, Allen, Larry (argued), Ambler Appellant, Bend, IN, Kowals, & South Herendeen Defendants-Appellees. JAIL OFFICIALS COUNTY ST. JOSEPH Nagy, County, Joseph Joseph F. St. a/k/a POSNER, Judge, BAUER Chief Before Defendants-Appel Stafford, al., et David RIPPLE, Judges. Circuit lees. No. 96-1407. RIPPLE, Judge. Circuit Appeals, Court of States United pre-trial de- Dorsey, while Reginold J. Circuit. Seventh County Jail Joseph the St tainee Argued Oct. guards, four de- Indiana, injured when 28, 1996. Decided Oct. Stafford, Deputy Deputy David fendants P. Paul Moffa Captain Thompson,

Robert Delinski, allegedly used Greg Sergeant transferring Mr. Dor- while force excessive notes This vision of the machinery ing contemplat that the “warrant requirement behind the warrant continues to by impor serves ed the Fourth Amendment” guide the Court: purposes in context of administrative tant searches). Opper But see South Dakota v. purpose An essential of a warrant re- man, 364, 375-76, 428 U.S. quirement protect privacy is to interests (1976) (holding that by assuring subject citizens search or “caretaking lawfully search seizure that such intrusions are not the impounded automobile” does not violate the arbitrary government random or acts of Amendment); United States v. Wat agents. A warrant assures the citizen that son, 46 L.Ed.2d law, by the intrusion is authorized and that (1976) (finding that a warrantless arrest narrowly objectives it is limited in its public place probable in a based on cause is scope. provides A warrant also the de- unreasonable). scrutiny magistrate, tached of a neutral objective concluding and thus ensures an determina- the Warrant Clause justified variety under a wide tion whether an intrusion is bears on reasonableness circumstances, given Court has case. eloquent frequently cited Jackson’s Justice Ass’n, Railway Labor Skinner Executives’ explanation important purposes served 602, 621-22, 109 by requirement: the warrant (citations omitted). L.Ed.2d Amendment, point of the Fourth unequivocally pre This case law grasped which often is not zealous offi- treating cludes us from the Reasonableness cers, is it law enforcement not that denies and Warrant Clauses of the Fourth Amend support of the usual inferences which involving entirely separate inqui ment as reasonable men draw from evidence. Its Rather, existing precedent, ries. under protection requiring consists that those officers’ failure to obtain a warrant before inferences be a neutral and de- drawn entering Defendant’s home defeats magistrate being judged tached instead of

Case Details

Case Name: United States v. Donald P. Rohrig

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 31, 1996

Citation: 98 F.3d 1506

Docket Number: 94-4207

Court Abbreviation: 6th Cir.