dissenting.
Because I disagree with the majority’s view of the facts and its expansive definition of “exigent circumstances,” I must respectfully dissent.
Because the exceptions to the warrant requirement are “few in number and carefully delineated,” the police bear a heavy burden in demonstrating exceptions such as exigent circumstances. Welsh v. Wisconsin, 466 U.S. 740, 744-750, 104 S.Ct. 2091, 2094-2098, 80 L.Ed.2d 732 (1984). The Supreme Court has recognized only “hot pursuit” of a fleeing felon,1 destruction of evidence,2 and an ongoing fire3 as exigent circumstances urgent enough to justify a warrantless search of a home.
Acknowledging that in this situation there was no “hot pursuit,” fear of destruction of evidence or ongoing fire, the majority departs from previous Supreme Court and Sixth Circuit rulings by validating a warrant-less search conducted during a burglary investigation under the guise of “exigent circumstances.” Such a holding cripples the Fourth Amendment. It resembles an Orwellian scenario where officers, based on an “anonymous tip,” approach a home, and upon an occupant’s inability to produce identification, arrest the resident and search her home.
Regardless of the departure from established precedent, the majority’s claim that the police officers “had every reason to believe that a burglary was in progress” is unacceptable. Angela Lewis was wearing pajamas and a bathrobe when police approached the house. Evidence indicates Lewis complied with the officers’ request for mail to establish her residence, although, not surprisingly, the officers are unable to recall whether or not she did. The officers are also unable to recall whether one of them conversed with next door neighbor Jeannine La-Voi, who testified that before the officers entered Johnson’s house she identified Lewis as a resident and stated that the owner, Emil Johnson, was presently at work at United Parcel Service.
The majority justifies the search as one “conducted to protect the safety of police officers and others” and that Lewis “could have” been under duress. I disagree. The circumstances presented no violence or danger to other individuals. Furthermore, after placing Lewis in custody, taking her out of “danger,” officers could have questioned her but failed to do so.
The majority also claims that a protective sweep of the residence was necessary to insure the security of the owner’s property. The majority fails to realize that under the subterfuge of protecting property, the government invaded the security and privacy of the owner’s property. While investigating a potential burglary is one of a police officer’s routine functions, invading the sanctity of homes is not.
Police officials are not free to create exigent circumstances to justify their warrant-less searches. United States v. Morgan, 743 F.2d 1158, 1163 (6th Cir.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 *513(1985). By refusing to simply call the owner, the officers unreasonably fabricated in their minds exigent circumstances to justify their warrantless intrusion. To avoid the irrationality of their unilateral decision, the officers could have easily detained the four inhabitants, interrogated them, and contacted the owner. Officer Orlov recalled that Lewis said the owner worked for United Parcel Service. No call, however, was placed to verify this information. Minor inquiry and investigation would have revealed Lewis had every right to be in the home. We should not reward an officer’s inaptitude and inaction with a license to freely enter citizens’ homes without a warrant. The Fourth Amendment of our Constitution, infinitely precious to our individual rights and liberties, deserves more respect than incorrect speculation based upon incomplete investigation by overanxious officers to which the majority defers.
“The point of the Fourth Amendment, which often is not grasped by zealous officers ... consists in requiring that ... inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948). It has long been recognized that police officers, due to their engagement and passion, often ignore the Fourth Amendment and engage in warrant-less invasions of homes without questioning neighbors, calling an owner or interrogating suspects. Acknowledging this tendency, the Constitution requires officers to obtain a warrant from an impartial and reasonable magistrate. When we allow police to assume decisions properly reserved for magistrates, as in this situation, officers become an adversary of not only criminals, but of the Constitution and the society it protects. The majority’s expansion of the exigent circumstances doctrine vests officers with a frightening abundance of discretion and will inevitably lead to a corrosion of the Fourth Amendment. Numerous invasions of privacy will result from imaginary and unsubstantiated burglaries fabricated from the combination of officers’ active imaginations, wary suspicions, and arrogance.
The majority recognizes that after the officers entered the house and discovered their burglary speculations were unfounded, the two subsequent warrantless entries by Lt. MeConaha of the Columbus Fire Department bomb squad and Agent Ozbolt of the Bureau of Alcohol, Tobacco and Firearms were problematic. Further searches should have been postponed until warrants had been obtained, as it was evident there was no burglary in progress. The fact that three searches were conducted before a warrant was obtained reveals the zeal, conceit and total disregard for the Fourth Amendment displayed by these officers throughout the entire episode.
Because the initial entry of the residence was unlawful, the subsequent warrantless searches and search warrant were invalid, and the evidence eventually seized under the search warrant must be suppressed as the fruit of that original illegality. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The entry was unjustified and everything that flowed from it was thereafter tainted.
.United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 300 (1976); Warden v. Hayden, 387 U.S. 294, 298-299, 87 S.Ct. 1642, 1645-1646, 18 L.Ed.2d 782 (1967).
. Schmerber v. California, 384 U.S. 757, 770-771, 86 S.Ct. 1826, 1835-1836, 16 L.Ed.2d 908 (1966).
. Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1950, 56 L.Ed.2d 486 (1978).