dissenting.
Of the various justifications that have been used to sanction the warrantless search in this case, in my view none satisfies constitutional standards. The district court found that Sean Carter consented to the search of his room and person. On appeal, a divided panel did not reach the issue of consent, finding instead that exigent circumstances justified the search. The majority now chooses not to reach the issue of exigent circumstances, and upholds the district court’s decision on yet another alternative basis. From the hat of uncertain jurisprudence, the majority hand-picks anomalous justifications to rationalize unlawful police action in retrospect, concluding that Carter may not have consented to the search, but he did consent to the officers’ entry, and, because marijuana was in “plain view,” the subsequent search of his room and person was valid. Of all of the proffered justifications for the police action in this case, the majority’s is *591particularly repugnant, and I necessarily dissent.
On the night that Carter was arrested, the officers were pursuing a confidential informant’s tip that Carter and his friend, Calvin Holliday, were going to a motel to resupply their crack cocaine inventory. While surveilling the motel for over an hour and a half, the officers had time to summon a narcotics detection dog and handler to the scene, but failed to obtain a warrant to search Carter’s motel room. In the absence of any urgency, the police had additional time to obtain a search warrant after they stopped Holliday, who, in combination with the informant’s tip, provided the officers with probable cause to believe that they would find more contraband in the motel room. Though they had plenty of time to obtain a warrant, the officers proceeded inside without one.
Arriving at Carter’s motel room door, they knocked twice and deceptively called out that they were motel housekeeping personnel. After two more knocks, Carter opened the door. Detective Edward Hart testified that at that moment, he spotted a cigar on a table inside and noticed that Carter was there alone. Accompanied by officers who were wearing official identification and were presumably armed, Detective Hart requested permission to enter the room. Upon this show of force, Carter stepped back, but did not respond. In the same moment, Detective Hart walked past Carter to examine the cigar and determined that it was a “blunt” — a hollowed-out cigar filled with marijuana.
The trial court found that Carter voluntarily “acquiesced” to the search by “stepping back” from the door upon Detective Hart’s request to enter, and that Carter’s “acquiescence” signaled consent. The majority partially agrees, finding that Carter’s “acquiescence” signaled his consent to the officer’s entry, though not necessarily to the search. In that sense, the majority concludes, Carter “invited” the officer in as he would “any other guest.” This conclusion lacks any foundation in fact or law. A police officer is not “any other guest.” Consent to entry in this case must satisfy the requirements of the Fourth Amendment.
We studied those requirements in United States v. Worley, 193 F.3d 380, 386 (6th Cir.1999), where we held that consent exists only when it is “unequivocally, specifically, and intelligently given, uncontaminated by any duress and coercion.” Consent is a “free and voluntary” statement of acceptance, and not “merely a response conveying an expression of futility in resistance to authority or acquiescing in the officers’ request.” Id. at 386. Carter’s motion of “stepping back” upon a show of police force hardly signals an unequivocally free or voluntary response. Rather than an invitation, Carter’s “stepping back” was more likely futile resignation or an effort to get out of harm’s way. On this record I simply cannot conclude that Carter’s “acquiescence” met the stringent requirements for consent that we have articulated in our Fourth Amendment jurisprudence.
Supplementing its conclusion that Carter consented to the officers’ entry, the majority utilizes the “plain view” exception to the Fourth Amendment’s warrant requirement to legitimize the warrantless search. The majority’s holding is wholly indefensible. This Court has explained that to invoke the plain view doctrine, the evidence must be “(1) in plain view; (2) of a character that is immediately incriminating; (3) viewed by an officer lawfully located in a place from where the object can be seen; and (4) seized by an officer who has a lawful right of access to the object itself.” United States v. Roark, 36 F.3d 14, 18 (6th Cir.1994) (citing Horton v. Cali*592fornia, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). See also United States v. Morgan, 743 F.2d 1158, 1167 (6th Cir.1984). The “plain view” exception is inapplicable in this case because the fact that the cigar was a “blunt” was not immediately incriminating. See United States v. McLevain, 310 F.3d 434, 443 (6th Cir. 2002) (“[W]hen an item appears suspicious to an officer but further investigation is required to establish probable cause as to its association with criminal activity, the item is not immediately incriminating.”) (citation omitted).
Detective Hart’s own testimony supports this conclusion. Hart explained: “From the door frame I could look in, and there was a small table ... between the door and the wall. On that I saw a — what I thought was a blunt — it’s a hollowed out cigar that marijuana is then put into.” Detective Hart later acknowledged, however, that whether a cigar is truly a “blunt” can only be verified by close examination. This exchange followed:
Q. From the outside it looks like a regular cigar?
A. Yes.
Q. Okay. So if I am looking across— if one was sitting on the table over there, it might very well be filled with marijuana, but it would look like a regular cigar?
A. That’s correct.
From this testimony, it is clear that the fact that the cigar was a “blunt” was not immediately apparent; rather, that fact was only discoverable upon closer inspection. Because the item that Detective Hart observed was not immediately incriminating from where he stood, the “plain view” exception to the warrant requirement cannot apply.
The United States has established neither consent nor the applicability of the “plain view” exception. And certainly there were no exigent circumstances — the officers had plenty of time to secure a warrant after they stopped Calvin Holli-day. Still, the majority inexplicably makes a determined effort to legalize unlawful police conduct and lead us through the gates of legitimacy, down the steep slope of retrospective rationalization, to where, even in this day of technological sophistication, we carelessly allow the expansion of police powers beyond what the Constitution allows. See United States v. Carpenter, 360 F.3d 591, 604 (6th Cir.2004). I would suppress and therefore I dissent.