concurring in part, dissenting in part, and concurring in the judgment in part.
Although I concur in the remainder of the opinion, I disagree with the majority’s holding in regard to the 3309 Illinois property.
I. The District Court Correctly Determined the Police Officers Were Not Entitled to Qualified Immunity for Their Warrantless Search of 3309 Illinois.
Under the law-of-the-case doctrine, I am bound by the district court’s holding that Inspector MacEnulty’s warrantless entry into 3309 Illinois for purposes of an administrative search did not violate the Fourth Amendment. See First Union Nat’l Bank v. Pictet Overseas Trust Corp., 477 F.3d 616, 620 (8th Cir.2007) (holding the law-of-the-case doctrine applies to final decisions by the district court that have not been appealed). This holding is final because, at the plaintiffs’ request, the district court entered final judgment on their Fourth Amendment claim against Inspector Ma-cEnulty pursuant to Federal Rule of Civil Procedure 54(b). And, although the plaintiffs initially sought to appeal this determination, the appeal was later voluntarily dismissed. Therefore, I am bound by the district court’s holding.
The majority expresses “little doubt” it was correct. I disagree. Except in closely-regulated industries, administrative searches are subject to the Fourth Amendment’s warrant requirement. Michigan v. Clifford, 464 U.S. 287, 294, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984); Michigan v. Tyler, 436 U.S. 499, 506, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); Marshall v. Barlow’s, Inc., 436 U.S. 307, 324, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 534, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 545, 87 S.Ct. 1741, 18 L.Ed.2d 930 (1967). Thus, Inspector Ma-cEnulty was required to obtain an administrative warrant.
*900Hroch v. City of Omaha, 4 F.3d 693 (8th Cir.1993), is inapposite. In Hroch, the appellee had received a final notice of condemnation of his property and had sought to enjoin its demolition, which the state court denied. Id. at 695. Hroch argued his Fourth Amendment rights were violated when his buildings were demolished without a warrant. Id. at 696. This Court disagreed. Id. at 697. In reaching its holding, the Court expressly relied upon the completion of administrative proceedings and subsequent judicial review, as well as the diminished privacy interests in a non-occupied commercial property. Id. at 696-97; see also Freeman v. City of Dallas, 242 F.3d 642, 654 (5th Cir.2001) (holding the warrantless demolition of vacant commercial property did not violate the Fourth Amendment where administrative condemnation proceedings were completed).
In contrast, Green had not received a final notice of condemnation, and 3309 Illinois was an occupied residence. Indeed, in February 2002, after the housing inspector found none of the structural problems that were the basis of the structural condemnation notice, Green was granted a Certificate of Occupancy. Although this certificate was revoked in August 2002, and Green was provided a list of minor repairs to be made, the notice merely stated “[a] reinspection will be made in or about 30 days to determine your progress in correcting these violations.... [I]f no progress is being made ..., the Code Official may ... condemn for occupancy.” Green then applied for, and received, a building permit in September 2002, and commenced making the repairs.
Thus, although the property might have remained technically condemned as of the date of the warrantless search, it is clear administrative proceedings were ongoing. Inspector MacEnulty, therefore, needed an administrative warrant to enter the premises. See Camara, 387 U.S. at 534, 87 S.Ct. 1727 (holding administrative searches by a housing inspector require a warrant).
Nonetheless, assuming, as I must, Inspector MacEnulty could enter 3309 Illinois without a warrant to conduct an administrative search, the majority relies upon United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983), to conclude the police officers could accompany him to pursue a criminal investigation.
Villamonte-Marquez, however, is factually limited to searches of sea vessels located in waters providing ready access to the open sea. 462 U.S. at 581, 103 S.Ct. 2573. The Supreme Court expressly distinguished searches of such sea vessels from those of automobiles on land. Id. at 584-92, 103 S.Ct. 2573. In particular, the First Congress expressly authorized the suspicionless boarding of sea vessels. Id. at 584, 103 S.Ct. 2573 (Act of Aug. 4, 1790, ch. 35, 1 Stat. 164). “As this Act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as ‘unreasonable,’ and they are not embraced within the prohibition of the amendment.” Id. at 586-87, 103 S.Ct. 2573 (quoting Boyd v. United States, 116 U.S. 616, 623, 6 S.Ct. 524, 29 L.Ed. 746 (1886)). The Court then specified several factual differences between “vessels located in waters offering ready access to the open sea and automobiles on principal thoroughfares in the border area,” including the nature of waterborne commerce and the extent and type of documentation required. See id. at 588-93, 103 S.Ct. 2573.
Despite the Supreme Court’s refusal to extend its holding in Villamonte-Marquez to automobiles — in which a person has a lesser expectation of privacy than in a *901home, see South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) — the majority extends its holding to encompass the warrantless search of a home. It strains credulity that Villa-monte-Marquez extends to searches of a home where Fourth Amendment protections are at their zenith. See Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (“It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed”) (internal quotation marks omitted). The majority thus erroneously concludes the police officers could enter to conduct a criminal search merely because Inspector MacEnulty could enter to conduct an administrative search.
Rather, because their purpose was criminal, not administrative, the police officers were required to obtain a criminal warrant. See Clifford, 464 U.S. at 294, 298, 104 S.Ct. 641. In Clifford, arson investigators went to the Cliffords’ house some five hours after a fire was extinguished. Id. at 290, 104 S.Ct. 641. Without an administrative or criminal warrant, they searched the basement and determined the fire originated there. Id. at 290-91, 104 S.Ct. 641. They then searched the remainder of the house. Id. at 291, 104 S.Ct. 641. The Cliffords were subsequently charged with arson, for which probable cause was established based on evidence obtained during the warrantless search. Id. at 289, 104 S.Ct. 641.
After reaffirming that “administrative searches generally require warrants,” id. at 291, 104 S.Ct. 641, the Court held the purpose of a search was dispositive: “[i]f the primary object [of the search] is to determine the cause and origin of a recent fire, an administrative warrant will suffice”; but, “[i]f the primary object of the search is to gather evidence of criminal activity, a criminal search warrant [must] be obtained-” Id. at 294, 104 S.Ct. 641.
The Court then made very clear that, once an administrative search turns into a search for criminal activity, a warrant is required. Id. at 294, 298, 104 S.Ct. 641. Because the investigators determined the cause and origin of the fire to be in the basement, “the search of the [remainder] of the house ... could only have been a search to gather evidence of the crime of arson.” Id. at 297, 104 S.Ct. 641. Thus, even if the basement search was a valid administrative search (which the Court held it was not), the search of the remainder of the house required a criminal warrant. Id. at 298, 104 S.Ct. 641 (“Although the investigators could have used whatever evidence they discovered in the basement to establish probable cause to search the remainder of the house, they could not lawfully undertake that search without a prior judicial determination that a successful showing of probable cause had been made.”).
Here, any administrative search quickly became a criminal search. The police officers accompanying Inspector MacEnulty do not dispute the primary object of their search was to gather evidence of criminal activity. Under Clifford, they were therefore required to secure a criminal warrant, and their failure to do so violated the Fourth Amendment.7
*902This analysis does not change because 3309 Illinois was condemned.8 As the Clifford court held, unless a house is in “ash and ruins,” reasonable privacy expectations remain even if a home is uninhabitable. Id. at 292, 104 S.Ct. 641; see also Tyler, 436 U.S. at 505, 98 S.Ct. 1942 (“[E]ven if the petitioner’s contention that arson established abandonment be accepted” and the house is uninhabitable, a home owner’s expectation of privacy in her personal effects remains subject to Fourth Amendment protection.).
Significantly, all of the cases holding an individual occupying a property illegally does not have a reasonable expectation of privacy are cases where the individual knew his occupancy to be illegal. See, e.g., United States v. Hunyady, 409 F.3d 297, 300-03 (6th Cir.2005).9 Although these cases may support a holding Green did not have a reasonable expectation of privacy because he knew 3309 Illinois was condemned, Dupre, Meister, Cross, Locey, and Verhelst did not know the property was condemned.10 Their reasonable expectation of privacy in the home was intact.11
Nor did exigent circumstances justify the officers’ warrantless entry. There is no evidence the building was in severe disrepair. Occupying a condemned building is a minor violation — one for which persons typically are not arrested if they vacate willingly. When the underlying offense for which there is probable cause to arrest is minor, courts are especially hesitant to find exigent circumstances justifying warrantless entry into a home. Welsh, 466 U.S. at 750, 104 S.Ct. 2091. Moreover, in Clifford, the Supreme Court held “[t]he object of the search is important [and a warrant may be required] even if exigent circumstances exist." 464 U.S. at 294, 104 S.Ct. 641 (emphasis added).
Accordingly, Dupre, Meister, Cross, Lo-cey, and Verhelst had a reasonable expectation of privacy in 3309 Illinois, which the police officers violated when conducting a warrantless search for criminal activity. Because their constitutional right was *903clearly established, I would affirm the district court’s denial of qualified immunity. See New York v. Burger, 482 U.S. 691, 724, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (Brennan, J., dissenting) (“In the law of administrative searches, one principle emerges with unusual clarity and unanimous acceptance: the government may not use an administrative inspection scheme to search for criminal violations.”) (collecting cases). Therefore, as to the plaintiffs’ Fourth Amendment claims arising from the illegal search of 3309 Illinois, I respectfully dissent.
II. Under Circuit Precedent, the District Court Incorrectly Determined the Police Officers Were Not Entitled to Qualified Immunity for Selectively Prosecuting the 3309 Illinois Plaintiffs in Order to Suppress Their Protest Speech; However, Such Precedent Warrants Reconsideration.
Because the plaintiffs’ First Amendment claim is based on an allegation the police selectively enforced St. Louis’s building code in an attempt to prevent them from engaging in the impending protest, their claim should not be defeated merely because there was probable cause for their arrest for occupying a condemned building. Rather, the Court should consider whether the plaintiffs were “singled out for prosecution while others similarly situated have not been prosecuted for conduct similar to that for which [they were] prosecuted [and] that the government’s discriminatory selection of [them] for prosecution was based upon ... [their anticipated] exercise of [their] first amendment right to free speech.” Osborne v. Grussing, 477 F.3d 1002, 1006 (8th Cir.2007) (quoting United States v. Catlett, 584 F.2d 864, 866 (8th Cir.1978)).
There is little question the plaintiffs were singled out because of their anticipated participation in the upcoming protest. Indeed, the express purpose of the “Building Code Enforcement Plan” was to target expected protesters. In addition, the police department typically does not initiate criminal prosecutions against persons for occupying condemned buildings. During his many years of service, Inspector Ma-cEnulty was not contacted once by the police department about a condemned building. Thus, there is a genuine issue of material fact whether the plaintiffs were selectively prosecuted.
The majority nonetheless condones the selective enforcement of the building code because the police officers’ actions were allegedly aimed at deterring unprotected violent protest activity. The Supreme Court has made very clear, however, the police may not interfere with a protest merely because they fear possible violence. Cox v. Louisiana, 379 U.S. 536, 550, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Edwards v. South Carolina, 372 U.S. 229, 237-38, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963). Rather, the police may only interfere if there is a “clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order....” Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Besides general allegations of protestor violence at prior World Agricultural Forums, the police officers did not have any evidence the plaintiffs were planning to engage in unprotected violent protest activity. While I am mindful the First Amendment does not insulate individuals from criminal sanction, when it comes to core First Amendment speech, such as political protest, the government may not use a hatchet where a scalpel will suffice. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982).
Nonetheless, because I am bound by Circuit precedent, see Drake v. Scott, 812 F.2d 395, 400 (8th Cir.1987), I reluctantly *904concur in the judgment with respect to the plaintiffs’ First Amendment claim. In Williams v. City of Carl Junction, 480 F.3d 871 (8th Cir.2007), this Court held, for an ordinary retaliation claim, i.e. “where the government agent allegedly harboring the animus is also the individual allegedly taking the adverse action,” Hartman v. Moore, 547 U.S. 250, 259, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006), a plaintiff selectively prosecuted for exercising his First Amendment rights must demonstrate a lack of probable cause for the underlying criminal charge. Williams, 480 F.3d at 876.
In so holding, the Court erroneously extended Hartman, which solely addressed retaliatory-prosecution claims, i.e., where the government agent allegedly harboring the animus “induced the prosecutor to bring charges that would not have been initiated without his urging.” 547 U.S. at 262, 126 S.Ct. 1695. In Hartman, the Supreme Court held a plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for the underlying criminal charge. Because in a retaliatory-prosecution claim there is an intervening decision by a prosecutor to pursue criminal charges, which is accorded a presumption of regularity, the Court found a probable-cause requirement was necessary “to bridge the gap between the nonprosecuting government agent’s motive and the prosecutor’s action, and to address the presumption of prosecutorial regularity.” Id. at 259, 263, 126 S.Ct. 1695. As the Court took great care to explain, it was the “differences between retaliatory prosecution claims and [ordinary] retaliation claims [that] justified and necessitated the additional requirement in retaliatory prosecution claims.” Skoog v. County of Clackamas, 469 F.3d 1221, 1234 (9th Cir.2006) (emphasis added); see also Hartman, 547 U.S. at 259, 126 S.Ct. 1695 (“It is ... the need to prove a chain of causation from animus to injury, with details specific to retaliatory-prosecution cases, that provides the strongest justification for the no-probable-cause requirement espoused by the inspectors.”) (emphasis added); id. at 259-63, 126 S.Ct. 1695 (detailing the differences between retaliatory-prosecution and ordinary retaliation claims). Because the Supreme Court expressly distinguished retaliatory-prosecution actions from ordinary retaliation actions, and Hartman’s rationale for requiring no probable cause is absent in ordinary retaliation actions, the Williams court incorrectly concluded Hartman’s no-probable-eause requirement should also apply to ordinary retaliation actions. See CarePartners, LLC v. Lashway, 545 F.3d 867, 2008 WL 4352597, at *6 n. 7 (9th Cir. Sept.25, 2008) (refusing to extend Hartman’s probable-cause requirement to ordinary retaliation claims); Skoog, 469 F.3d at 1235 (same).
Nonetheless, the instant case is controlled by Williams, and the plaintiffs thus are required to prove an absence of probable cause to maintain their First Amendment claim. Because the police rather than a prosecutor initiated criminal proceedings against the plaintiffs, the instant case also presents an ordinary retaliation claim. Although the plaintiffs’ claim is technically a prior restraint, rather than post-speech retaliation, action, see Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67-68, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) (recognizing a criminal prosecution may constitute an impermissible prior restraint on speech), this distinction is without a difference under these circumstances. Therefore, under Williams, the plaintiffs’ First Amendment claim must fail because there was probable cause for their arrest.
I write separately to express my strongly held view that the existence of probable cause should not defeat a claim for selective enforcement in the First Amendment context where there is no intervening ac*905tion by a prosecutor. Although this is not the first time the “punitive machinery of government” has been employed to suppress protest speech, Garcia v. City of Trenton, 348 F.Sd 726, 729 (8th Cir.2003), by refusing to hold the police officers accountable for their clearly unlawful conduct, our precedent ensures it will not be the last.
. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), is not to the contrary. In fact, Whren specifically distinguishes administrative searches. 517 U.S. at 811-12, 116 S.Ct. 1769 ("[W]e never held, outside the context of inventory search or administrative inspection ..., that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment ....”) (emphasis added); see also City of Indianapolis v. Edmond, 531 U.S. 32, 46, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) ("Whren does not preclude an inquiry into programmatic purpose. ...").
. The majority relies upon the Building Code of the City of St. Louis to find otherwise. Although prior Eighth Circuit precedent may have looked to state law to determine what is reasonable under the Fourth Amendment, see Bissonette v. Haig, 800 F.2d 812, 815 (8th Cir.1986), the Supreme Court has recently held this approach to be incorrect, Virginia v. Moore, - U.S. -, 128 S.Ct. 1598, 1604, 170 L.Ed.2d 559 (2008). Because “state law [does] not alter the content of the Fourth Amendment,” a city ordinance may not condone what the Fourth Amendment proscribes. Id.
. Similarly, in Raleas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court's examples of "wrongful presence” for which a defendant did not have a legally protected expectation of privacy, involved situations where the defendant knew his presence to be unlawful. Id. at 141 n. 9, 99 S.Ct. 421 (automobile thief does not have a reasonable expectation of privacy in the stolen automobile); id. at 143 n. 12, 99 S.Ct. 421 ("burglar plying his trade in a summer cabin during the off season” does not have a reasonable expectation of privacy in the cabin).
. As overnight guests of Dupre and Meister, Cross, Locey, and Verhelst had a reasonable expectation of privacy. See Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).
. There have been other documented cases in St. Louis of landlords renting condemned properties. See Court Order Stops Landlords from Renting Condemned Property, Saint Louis Front Page, Mar. 16, 2001, http://www.slfp. com/03160 lCity.htm (St. Louis business enjoined from renting condemned residential properties); Dirk Johnson, A Bitter Battle Fought on Two Housing Fronts, New York Times, Oct. 28, 1987, available at http://www. nytimes.com (St. Louis landlord sentenced to jail for renting apartments in condemned buildings). Unknowing tenants do not lose their Fourth Amendments rights merely because they rent from unscrupulous landlords.