United States v. Jerry Pollard (98-5908) and Eddie Rodriguez (98-6118)

NATHANIEL R. JONES, Circuit Judge,

dissenting.

In affirming the district court’s denial of Pollard’s motion to suppress, the majority adopts the Seventh Circuit’s “consent once removed” doctrine. This rule provides essentially that when an individual grants an undercover officer consent to enter a residence, the citizen has sufficiently compromised his Fourth Amendment privacy expectations to justify a warrantless search. See United States v. Akinsanya, 53 F.3d 852, 856 (7th Cir.1995). Because I believe this doctrine represents an unjustified extension of our traditional exigent circumstances jurisprudence, I respectfully dissent.

While the Fourth Amendment is implicated whenever government attempts to search its citizens, its protections apply with particular force to the home. See Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (holding that the Framers drew “a firm line at the entrance to the house”). It is well settled that warrantless searches of a home are unreasonable unless supported by probable cause and exigent circumstances. See Pray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir.1995); Wilson v. Strong, 156 F.3d 1131, 1134 (11th Cir.1998); see also Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (“Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.”).

We have recognized the existence of the following three exigent circumstances: 1) when officers are in hot pursuit of a fleeing suspect; 2) when the suspect represents an immediate threat to the arresting officers or the public; or 3) when immediate police action is necessary to prevent the destruction of vital evidence or to thwart the escape of known criminals. See O’Brien v. City of Grand Rapids, 23 F.3d 990, 996 n. 5 (6th Cir.1994). While we generally limit “exigent circumstances” to these three situations, we may recognize new exigencies when necessary. See United States v. Rohrig, 98 F.3d 1506, 1519 (6th Cir.1996). In determining whether to fashion a new exigency, we assess the nature of the government interest involved; the interplay of that interest and the citizen’s privacy interests; and whether immediate action is needed. See id. at 1518.

In this case, none of our traditionally recognized exigent circumstances justify the officers’ search of the home, and the facts of this case do not support creating a new exigency. There is no evidence of any threat to Officer Askew; no evidence that either Pollard or Rodriguez was armed; *650and no evidence that either Pollard or Rodriguez intended to destroy any evidence. Under the analysis we articulated in Rohrig, the government has not demonstrated that it was necessary that the officers raid the home when they received the signal from the informant, nor has it shown, on the facts of this case, that any legitimate government interests purportedly vindicated by the “consent once remove doctrine” override Pollard’s privacy expectations. In short, without any specific reason to believe that evidence would be destroyed or that officer safety was in danger, there is no justification for a war-rantless intrusion into the sanctity of a private home. Without an exigent circumstance to support the government’s entry, all evidence recovered after the illegal search should be suppressed. See, e.g., United States v. Dice, 200 F.3d 978, 982-83 (6th Cir.2000).

While I agree that Rodriguez does not have standing to challenge the government’s search, I respectfully dissent from the majority’s adoption of the “consent once removed” doctrine and its decision to affirm the denial of Pollard’s suppression motion.