OPINION AND ORDER DENYING GOVERNMENT’S MOTION FOR RECONSIDERATION
On October 23, 2000, this Court filed a memorandum opinion and order granting the defendant’s motion to suppress evidence. The Court found that a police officer’s warrantless entry into the defendant’s home was unlawful because it was not supported by either probable cause or exigent circumstances. Further, this Court held that the information obtained by the officer during the illegal entry tainted the affidavit that was subsequently submitted in support of a search warrant that was eventually issued authorizing the search of the defendant’s home.
United States v. Meixner,
The government has now filed a motion for reconsideration pursuant to E.D.Mich.LR 7.1(g)(3), 1 which states:
*1071 [T]he court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court, either expressly or by reasonable implication. The movant must not only demonstrate a palpable defect by which the court and the parties have been misled but also show that correcting the defect will result in a different disposition of the case.
The government contends that this Court applied the wrong law legal standard in evaluating the level of suspicion that the officer must have to justify a warrantless entry in the circumstances of this case, and that the Court erroneously rejected the application of the good faith exception to the exclusionary rule.
I.
A.
On the issue of Michigan State Police Officer Douglas Tanner’s warrantless entry into the defendant’s home in Gladwin, Michigan, this Court held that warrantless entries and searches of a person’s home are presumptively unreasonable, that the government bears a heavy burden to demonstrate exigent circumstances that may excuse the failure to obtain a search warrant, and that one exception within the scope of exigent circumstances was that a police officer may enter and search a home when the officer has a reasonable belief that a person within needs immediate aid.
Meixner,
The test is an objective one: the police officer must be able to point to “specific and articulable facts” at “the moment of the warrantless entry” that would lead a reasonable, experienced law enforcement officer to believe that someone inside the dwelling required immediate assistance. See United States v. Morgan,743 F.2d 1158 , 1162, 1163 (6th Cir.1984), United States v. Arch,7 F.3d 1300 , 1304 (7th Cir.1993).
Id. at *7.
The Court thereafter concluded that the government failed to make the required showing because there was no evidence in the record which
established
— i.e., which directly proved or from which reasonable inferences could be made — that there was someone inside the Meixner home who might require immediate aid at the time Officer Tanner made his warrantless entry.
Id.
at *9-*10. This Court noted that in cases applying other exigent- circumstance exceptions, the Court of Appeals for the Sixth Circuit has field that the government must prove more than a “mere possibility” of an emergency.
Id.
at *7, citing
United States v. Radka,
In its motion, the government has attempted to recast the Court’s holding as requiring “positive proof that an emergency existed,” rather than reasonable suspicion, to justify a warrantless entry made under exigent circumstances. Motion for Reconsideration, p. 3. The government argues that Officer Tanner was confronted with a situation highly indicative of a domestic dispute, and that if he had simply “left the scene of such circumstances at that point [he] would have been subject to criticism for abandoning his ... duty to protect a victim of assault.” Id., p. 4.
The government cites several cases from various circuits in support of its position, and in the course of its argument introduces now the concept that Officer Tanner’s warrantless entry may have been justified by his role as community caretaker. The Court will address in turn the facts in this case, the applicability of these decisions, and the notion that the community caretaking function might justify a warrantless entry in the circumstances of this case.
*1072 1.
In its memorandum opinion, this Court has recited the facts adduced at the prior evidentiary hearings. To summarize, Officer Tanner was dispatched to the Meixner house to investigate a 911 hang-up call. When he arrived, he found two occupants who appeared intoxicated, and circumstances suspicious of a domestic dispute. Before Tanner entered, the male occupant was removed from the house and the female occupant was present in the front room within Tanner’s view. Tanner testified that he “had a suspicion there may have been [a domestic assault] but not enough probable cause to make an arrest.” (Transcript of Officer Tanner’s testimony, p. 49). He also testified that the reason he entered the house was to offer immediate assistance to the female, Monica Allor. (Id. pp. 38-39). There was no evidence from which an inference could reasonably be drawn that there were other people in the home who required aid, and Tanner’s partner, Police Officer Gary Hubers, specifically testified that he had no reason to believe that someone else on the premises was injured.
2.
The government’s argument, that Officer Tanner would be justly criticized if he simply left the premises at that point, presupposes only two options for the officer: leave the scene or enter and search the house. On the continuum of responses, the government has identified the polls, and ignores those intermediate responses which define measured behavior and are characteristic of the reasonableness to which the Fourth Amendment makes reference. For instance, if there was a domestic dispute, the officer could bring both parties out of the house, separate them, satisfy himself that no further “flare-up” was likely, and then leave the premises. If violence ensued, or if the officer learned of an earlier assault, he could effectuate an arrest. There is no suggestion in this record, however, of a need to make a warrantless entry into the house in order for the officer to responsibly discharge his duties-in this case.
To argue otherwise, the government cites
United States v. Brown,
In
Brown,
drug enforcement administration agents arrested a suspect, Johnson, who was driving a car which belonged to Fannie Bonds. The glove box contained a rental agreement in Bonds’ name for another vehicle, and showed Bonds’ address. Johnson agreed to take the agents to his source, and led them to Bonds’ street and pointed out the defendant, Brown. The agents questioned Brown, who said he lived in the apartment which had been listed as Bonds’ address, but claimed he was standing on the street because he was locked out of his apartment. The apartment doorbell bore Bonds’ name but not Brown’s. The agents arrested Brown and the search of his person produced keys, one of which fit the apartment door. The agents entered to look for Bonds, who was not there, and found drugs in plain view. The Court upheld the entry and search
*1073
because the officers reasonably believed that Bonds could be in the apartment and in danger, given Brown’s involvement in drug dealing, his fabrication of the story about locking himself out of the apartment, and his possession of the apartment keys. The Court noted that the lower court should have concluded that the search was reasonable after it had credited the agent’s testimony that he entered out of concern for Bonds’ safety.
The majority’s decision in
Brown
was criticized by the dissent on several grounds,' including the use of a “ ‘sliding scale’ approach ... as license for warrant-less intrusions into private dwellings.”
Id.
at 1089 (Rooner, J., dissenting). The Sixth Circuit’s rule, set forth earlier in this opinion, does not utilize a sliding scale approach. In
United States v. Dunavan,
Brown is also distinguishable on the facts. There, the agents’ suspicion that Bonds was in peril could not be dispelled without looking for her. In this case, no search was necessary to locate the object of Officer Tanner’s concern. Monica Allor was within his view and speaking with him. There was no need to enter the house.
Nor does
United States v. Salava,
3.
The government also cites several cases in which warrantless police entries of residences were justified on the basis of burglary investigations, including
United States v. Tibolt,
However, the
Murdock
Court described, but did not use, a three-part test employed by other courts to analyze emergency cases and that test was subsequently adopted by the Ninth Circuit in
United States v. Cervantes,
The Court in Cervantes recognized that there was both an objective and a subjective component to this test. In other words, the officer’s action must be objectively reasonable and supported by reasonable grounds approximating probable cause; and the officer’s motives must be pure, that is, the emergency must not be a pretext for searching for another purpose. Resort to the emergency doctrine, however, suggests a concession that probable cause which is required to justify searches and seizures under a traditional analysis is absent.
The Sixth Circuit’s iteration of an exception of this type can be found in
United States v. Rohrig,
The Court stated that its inquiry about the validity of the warrantless entry was driven by three questions: “(1) whether immediate government action was required, (2) whether the governmental interest was sufficiently compelling to justify a warrantless intrusion, and (3) whether the citizen’s expectation of privacy was diminished in some way.” Id. at 1521. *1075 The Court held that there was a need for immediate action because the noise was continuous and offensive to neighbors; the peace and tranquility of the neighborhood was an important governmental interest served, that is, it was necessary to immediately abate the nuisance; and the defendant undermined the traditional privacy interest in his dwelling by projecting loud noises out into the neighborhood. In other words, the Court found that it could not protect the defendant’s privacy interests in that case without diminishing the neighbors’ right to the quiet enjoyment of them own homes. Id. at 1521-22.
It is the government’s contention in this case that Officer Tanner likewise was discharging his community caretaldng role when he entered the Meixner home to investigate a possible domestic dispute. This argument, however, must be rejected. First, there is no showing that immediate action which included a warrantless home entry was required. Monica Allor was within Officer Tanner’s view. He could have asked her to come out of the house. There is no evidence in this record that there was someone else in the house in need of assistance, immediate or otherwise.
Second, the government has not demonstrated a compelling interest in this case which justifies a warrantless intrusion. It is beyond question that the state has a compelling interest to protect its citizens and investigate crimes, including domestic assault. However, that interest does not alone justify a departure from the requirements of the Constitution. To hold otherwise would allow this exception to engulf the Fourth Amendment itself. Rather, the compelling governmental interest must have its foundation in the needs of the moment — the exigency- — and the harm which is reasonably presented by the objective information available to the responding officer. The officer must be able to point to specific and articulable facts justifying a reasonable belief that someone inside was in immediate need of assistance. In this case, the government did not make the requisite showing which established a need to enter Meixner’s home.
Finally, the third prong of Rohrig’s test calls for an assessment of the home dweller’s expectation of privacy. On this record, Meixner sought to stand on his right to be free from a warrantless government home entry. Tanner responded to the defendant’s assertion of his rights by a show of raw power and a declaration that his badge was the only authority he needed to enter the home. There was no need for Tanner to enter the home for any purpose called for by the circumstances, except perhaps to establish domination over the will of the home dweller. Unlike the defendant in Rohrig, Meixner did nothing to undermine his right to be left alone. The government’s interest in effectuating an immediate home entry in this case is not more compelling than a defendant’s interest in maintaining the privacy of his home.
With respect to the warrantless entry of Meixner’s home by Officer Tanner, the government has not articulated a legal standard that has been misapplied to the facts of this case as found by the Court. The Motion for Reconsideration on that basis, therefore, is DENIED.
B.
The government also contends that the good faith exception to the exclusionary rule announced by the Supreme Court in
United States v. Leon,
The government criticizes this Court’s reference to
United States v. Dice,
In
United States v. Leon,
the Supreme Court announced an exception to the exclusionary rule applicable in certain cases of searches and seizures made pursuant to a search warrant. The Court balanced the costs of the exclusionary rule measured in the loss of evidence against the remedial benefits it provides in deterring unlawful police conduct and preserving the values of privacy reflected in the Fourth Amendment.
The
Leon
decision itself dealt only with search warrants that were technically deficient or which were issued on the basis of affidavits that did not quite measure up to a later examination for probable cause. It did not attempt to reconcile the newly-announced good faith exception with the “fruit of the poisonous tree” doctrine stated in
Wong Sun v. United States,
The government, however, has cited several cases, all from other circuits, which apply the good faith exception in circumstances where information to support a search warrant was obtained in police-citizen encounters later determined to violate the Fourth Amendment. For instance, in
United States v. White,
United States v. Thomas,
Other courts have held that
Leon
simply “does not apply where a search warrant is issued on the basis of evidence obtained as the result of an illegal search.”
United States v. Wanless,
*1077
In
United States v. Reilly,
The Court of Appeals for the Sixth Circuit has viewed the decision in Leon as follows:
In analyzing the good faith exception, the [Leon ] Court identified three paradigmatic situations in which a search pursuant to a warrant may be held to be illegal. First, if a warrant is based on a knowing or reckless falsehood contained in the supporting affidavit, the warrant is invalid under Franks v. Delaware,438 U.S. 154 ,98 S.Ct. 2674 ,57 L.Ed.2d 667 (1978). In this situation, there is necessarily police misconduct which can and ought to be deterred and suppression remains an appropriate remedy. Second, a warrant issued by a magistrate who acts as a mere rubber stamp for the police, or as an adjunct law enforcement officer, and who thus fails to manifest that neutrality and detachment demanded of a judicial officer, will be declared invalid. In such a case, no reasonably well-trained officer should rely on the warrant and the good faith exception will not apply. Third, if the information contained in the affidavit simply does not add up to probable cause, even after according the proper deference to the magistrate’s determination, the warrant will be held invalid. Where a warrant is held to be invalid due to a simple error in the determination of probable cause, the evidence should be suppressed only if the supporting affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Similarly, a warrant may have a technical deficiency so that, even though probable cause exists to conduct a search, the particular search authorized by the warrant is illegal because, for example, the place to be searched or the objects to be seized are not particularly described. Suppression is an appropriate response to such a defect only when the warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid.
United States v. Savoca,
The Court of Appeals for the Sixth Circuit has not directly addressed the question of when and if the good faith exception applies when the search warrant affidavit is tainted by evidence which itself was obtained in violation of the Fourth Amendment. This Court believes, however, that the exclusionary rule should apply in such cases unless there are circumstances in which the prior Fourth Amendment violation is so remote so as to dissipate the taint.
The rationale underlying the exclusionary rule and its good faith exception requires that there must be a deterrent, remedial effect that derives from suppressing evidence. In this case, Officer Tanner’s unlawful conduct supplied the information which went to the heart of the probable cause determination. The infor
*1078
mation was not obtained, for example, during a police-citizen encounter in a public place, thereby pushing it into a gray area of validity. Rather, Tanner’s discovery was made during a warrantless entry into a private home, an entry that was presumptively unreasonable. Further, since there is a heightened expectation of privacy in one’s own dwelling and a physical intrusion into one’s home “is the chief evil” addressed by the Fourth Amendment,
Payton v. New York,
The government argues that the BATF agents who executed the search warrant were not the ones who made the original warrantless entry, and therefore the good faith of the BATF agents should save the search. The government cites
United States v. Teitloff,
Teitloff
does not illuminate the issue of whether the good faith exception to the exclusionary rule should apply in this case. It provides guidance, if at all, on the disposition of evidence seized pursuant to a search warrant which issued on information which itself was obtained in violation of the Fourth Amendment: the Court in that case suppressed the evidence.
Likewise, in this' case the search warrant affidavit was tainted with evidence obtained as the result of a prior, warrant-less, presumptively unlawful entry into a personal dwelling. The search warrant was a direct result of the illegally obtained information. The Fourth Amendment violation is not so remote that its taint is dissipated, or that the deterrent effect of suppression is without practical meaning. The exclusionary rule requires suppression of the evidence to promote the ends of the Fourth Amendment. This is not a case in which the good faith exception to the exclusionary rule is appropriately applied.
Because the government has not demonstrated an error in this Court’s prior memorandum opinion and order which requires a different disposition of the case on the issue of whether the good faith exception should apply, the motion for reconsideration must be DENIED.
II.
For the reasons stated, the government’s motion for reconsideration is DENIED.
Notes
. L.R. 7.1 governs motion practice in civil cases. LCrR 12.1(a) states that "[m]otions in criminal cases shall be filed in accordance with the procedures set forth in L.R. 7.1.”
. In
Buie,
the officers had obtained an arrest warrant for the defendant, which was served at his home. The Supreme Court held that, incident to the arrest, the officers could look in closets and other spaces from which an attack could be immediately launched. The Court stated: "[W]e hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.”