MEMORANDUM AND ORDER

RICHARD ROGERS, Senior District Judge

Defendant is charged in a five-count indictment. Counts 1, 2 and 3 concern drugs and guns allegedly found at his residence on or about October 13, 2000. Count 4 concerns an alleged incident of drug distribution on December 12, 2000. Count 5 alleges possession of a weapon on December 29, 2000. This case is now before the court following the receipt of evidence and argument upon a motion to suppress.

The motion to suppress in this case involves Counts 1, 2 and 3 and events which occurred on October 13, 2000 around 5:35 or 6:00 a.m. Defendant asserts that law enforcement officers engaged in a warrantless entry of his home which led to the discovery of information, which in turn provided the grounds for the later execution of two search warrants at his residence. The court heard testimony from the two officers who were involved in the initial entry at defendant's home on October 13, 2000. These two officers testified differently in some important respects regarding what occurred.

Police officer Richard Parsons of the Grandview Plaza, Kansas Police Department testified that he received a dispatch about 5:30 a.m. on October 13, 2000. The dispatch indicated that there were loud noises, yelling and a possible domestic disturbance at the area of 103 River View Drive. When he arrived at the address, he heard no noise and saw no disturbance. He knew that defendant, Jason Davis, and Desiree Coleman lived at that address. Officer Parsons was wearing a uniform and driving a marked car.

As Officer Parsons arrived, defendant, wearing only white boxer shorts, opened the door to the home and stood in the doorway. Defendant said that he had spanked his child and that this was the reason for the noise. Defendant had alcohol on his breath and bloodshot eyes.

Officer Parsons asked if defendant's wife was at the residence, and defendant responded that she was in Topeka. At this point, Desiree Coleman approached defendant from behind and wrapped her arms around defendant's waist. She began to say that she and defendant had been arguing. Officer Parsons attempted to engage Ms. Coleman in further conversation, but defendant tried to block her from the officer. Ms. Coleman was also somewhat scantily clothed.

According to Officer Parsons, at this point, Deputy Sheriff James Fletcher of the Geary County Sheriff's Department arrived. Officer Parsons told defendant to step aside and stop blocking Ms. Coleman. He said that defendant was trying to close the door and Ms. Coleman was trying to reopen the door. Officer Parsons said that defendant refused to grant the officers permission to enter, at which time Deputy Fletcher said the officers were going to come into the home. At that point, according to Officer Parsons, defendant opened the door and ordered Ms. Coleman to go outside while he retreated further inside the house.

Officer Parsons stated that both officers then entered the house and told defendant to stop. He said that Ms. Coleman tried to block him with her arm as he entered. However, he pushed her arm away and entered the home. Defendant refused to stop. He returned to the main room carrying a child, put the child down and started to again go toward the back of the house. At that point, Deputy Fletcher put his hand on his gun and ordered defendant to stop. Defendant stopped and then on command went outside with Deputy Fletcher. Defendant said that he wanted the officers out of the house.

Officer Parsons stayed inside with Ms. Coleman, who by this time was upset with the officers. She did not give consent to search the home and told Officer Parsons that he would need a warrant. Officer Parsons noticed: loose tobacco in and around an ashtray on the floor; what appeared to be a marijuana blunt; and a tool for removing tobacco to make a blunt. Upon this discovery, he instructed Deputy Fletcher to put defendant in custody. Officer Parsons then placed Ms. Coleman in custody and started making arrangements for the children's grandparents to take control of the children. While gathering clothes for the children, Officer Parsons saw another marijuana blunt and three weapons.

There were no physical signs of fighting or abuse between defendant and Ms. Coleman. Nor was there any report of physical fighting or abuse.

Officer Parsons testified that he entered defendant's home because he was concerned for Deputy Fletcher's safety. He feared that defendant might be trying to flee or going into the house to retrieve a weapon. He knew defendant from previous encounters. He had never seen defendant with a weapon or marijuana in the past and had had no difficulties with him. When he stopped at defendant's house he asked for a computer check on defendant. The check came back negative for wants and warrants at 5:32 a.m.

Deputy Fletcher testified that when he arrived at defendant's address he saw Officer Parsons speaking to defendant at the front door of the home. He said that he spoke to Officer Parsons who told him that defendant claimed his wife (Ms. Coleman) was not in town, but that she was in the back of the room. Deputy Fletcher said that he heard Ms. Coleman and that she was angry and screaming. So, he decided to enter the house to check on her safety.

According to Deputy Fletcher, he pushed defendant aside, entered the home without permission, and made contact with Ms. Coleman. Defendant then "stormed back" to the bedrooms in the back of the house. Deputy Fletcher testified that he pulled his weapon and pointed it down the hall, ordering defendant back in the living room. Defendant returned with a small child in his arms. Deputy Fletcher said that he then checked the bedrooms, returned to the front room, and went outside with defendant. Approximately five minutes later he put defendant in handcuffs at Officer Parsons' direction.

Deputy Fletcher said that Coleman told him that she and defendant had been arguing. He also said that she was holding a child and that defendant brought back a bigger child.

When Officer Parsons applied for a search warrant for defendant's home on October 13, 2000, his affidavit stated in part:

The Affiant found the female subject was Desiree Coleman. Deputy Fletcher arrived on scene at this time. Mrs. Coleman started to say something about her and Mr. Davis being involved in a verbal argument. Mr. Davis pushed Mrs. Coleman backwards and shut the front door as he stepped outside. Mrs. Coleman attempted to open the door and Mr. Davis pulled the door shut.

Mr. Davis attempted to hold the Affiant and Deputy Fletcher in [an] attempt to stop entry into the residence. Mr. Davis demanded Mrs. Coleman come outside to speak to the police officer. Mr. Davis then walked inside the residence towards the back room saying he was going to get a child. Mr. Davis refused to stop. Mrs. Coleman now attempted to block the door and stop the Affiant and [D]eputy Fletcher from entering the residence.

The Affiant and Deputy Fletcher entered [in] to the residence for security and to ensure no other parties were in the residence. It was found that two children were in the residence, Jaivaum — age 18 months and Tahfari — age 06 years old.

Mr. Davis demanded to walk out of the residence. Deputy Fletcher escorted Mr. Davis outside while the Affiant remained inside to speak with Mrs. Coleman.

The Affiant observed two ashtrays sitting on the floor in the living room. There was a large amount of loose cigar tobacco in the ashtray and suspected marijuana blunts in the second ashtray. There was a silver tool sitting by the ashtrays, and the Affiant believes the tool was used to pull the tobacco from the cigars and replaces (sic) it with the suspect marijuana.

No written report or affidavit from Officer Fletcher is in the evidence presented to the court.

Defendant argues that the officers' entry into the residence was illegal and constituted a warrantless search. The government asserts that the entry was justified by "exigent circumstances."

The Supreme Court has stated that the protection of privacy in the home is a prime constitutional concern of the Fourth Amendment and that exigent circumstances are required to invade the privacy of the home without a warrant:

It is axiomatic that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972). And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. See Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-369, 92 L.Ed. 436 (1948). It is not surprising, therefore, that the Court has recognized, as "a 'basic principle of Fourth Amendment law[,]' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S., at 586, 100 S.Ct., at 1380. See Coolidge v. New Hampshire, 403 U.S. 443, 474-475, 91 S.Ct. 2022, 2042-2043, 29 L.Ed.2d 564 (1971) ("a search or seizure carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show . . . the presence of 'exigent circumstances'").

. . . .

Consistently with these long-recognized principles, the Court decided in Payton v. New York, supra, that warrantless felony arrests in the home are prohibited by the Fourth Amendment, absent probable cause and exigent circumstances. Id., 445 U.S., at 583-590, 100 S.Ct., at 1378-1382. At the same time, the Court declined to consider the scope of any exception for exigent circumstances that might justify warrantless home arrests, id., at 583, 100 S.Ct., at 1378, thereby leaving to the lower courts the initial application of the exigent circumstances exception. Prior decisions of this Court, however, have emphasized that exceptions to the warrant requirement are "few in number and carefully delineated," United States v. United States District Court, supra, 407 U.S., at 318, 92 S.Ct., at 2137, and that the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests. Indeed, the Court has recognized only a few such emergency conditions, see, e.g., U.S. v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-2410, 49 L.Ed.2d 300 (1976) (hot pursuit of a fleeing felon); Warden v. Hayden, 387 U.S. 294, 298-299, 87 S.Ct. 1642, 1645-1646, 18 L.Ed.2d 782 (1967) (same); Schmerber v. California, 384 U.S. 757, 770-771, 86 S.Ct. 1826, 1835-1836, 16 L.Ed.2d 908 (1966) (destruction of evidence); Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978) (ongoing fire), and has actually applied only the "hot pursuit" doctrine to arrests in the home, see Santana, supra.

One "exigent circumstance" which is recognized by the courts is the need to protect or preserve life or avoid serious injury either of police officers themselves or of others. See Mincey v. Arizona, 437 U.S. 385, 392 (1978). The threat to the officers or the public must be "immediate." See U.S. v. Dahlman, 13 F.3d 1391, 1398 (10th Cir. 1993) cert. denied, 511 U.S. 1045 (1994).

As stated in the above excerpt from the Welsh opinion, the burden is upon the government to establish the existence of an exigent circumstance which excuses the failure to obtain a warrant. See also, Payton v. New York, 445 U.S. 573, 586 (1980). Here, we do not believe the burden has been satisfied.

The government contends that the officers entered the home to check on the welfare of Ms. Coleman, who was possibly a victim of domestic violence. However, this is at odds with the testimony and written report of Officer Parsons. In both of these statements Officer Parsons said that Ms. Coleman was either at the door or outside of the door actually attempting to prevent the officers' entry into the home.

We acknowledge obviously that Deputy Fletcher stated that Ms. Coleman was inside the home and seemed to be upset when he entered. Both Deputy Fletcher and Officer Parsons appeared credible to the court. But, we choose to accept Officer Parsons' version since it is corroborated by a contemporary written account. Even if we did not credit the testimony of Officer Parsons over the testimony of Deputy Fletcher, the conflict in their testimony on this point is such that we could not find that the government satisfied its burden of proving an exigent circumstance. Cf., United States v. Starr, 434 F. Supp. 214 (D.C. 1977) (conflicting testimony of two witnesses leads court to find that government has not proven an exigent circumstance).

Although the court acknowledges that domestic violence calls can be dangerous and unpredictable, we do not believe this general categorization is adequate to justify a warrantless entry under these circumstances. The case cited by counsel for the government, Tierney v. Davidson, 133 F.3d 189 (2nd Cir. 1998), involved officers who could not check upon the condition of a suspected victim of a "bad" domestic disturbance — "the worst yet at this location" — without entering the home. 133 F.3d at 197. In the case at bar, Officer Parsons stated that the suspected victim was trying to prevent him and Deputy Fletcher from entering the house. Obviously, they could check her condition without entering the home. Furthermore, there was not a strong indication that Ms. Coleman had been a victim of domestic violence. The dispatch apparently did not mention screams or cries or sounds of a physical altercation, and Ms. Coleman did not appear to Officer Parsons to have suffered any injury. Nor were there good grounds to believe there might be any other victim inside the house.

The court also finds that officer safety does not supply adequate grounds for the entry of defendant's home without a warrant. Defendant was not being violent or threatening toward the officers. He may have been somewhat agitated and somewhat intoxicated. But, he was not being physically or verbally aggressive toward the officers. If anything, he wanted to avoid contact with the officers. The officers had no information that defendant had weapons or a propensity to use them in this situation. Officer Parsons testified that he had not had problems with defendant in past encounters. He had also been told that defendant had no wants or warrants pending against defendant. It is mere conjecture to suggest that defendant may have been attempting to do something which would be a danger to the officers. Cf., U.S. v. Dugger, 603 F.2d 97, 100 n. 5 (9th Cir. 1979) (rejecting conjecture that defendant in an apartment could flee and have a gun as grounds to justify warrantless entry in investigation of a fistfight).

Finally, the court rejects any suggestion by the government that Ms. Coleman consented to the officers' entry into the home. Officer Parsons' affidavit for a search warrant in this case (Exhibit 401) states that both defendant and Ms. Coleman attempted to block Parsons and Fletcher from entering the home. The testimony of both officers indicated that neither defendant nor Ms. Coleman approved of the officers being in the house; indeed, they were both upset about it. The burden of proving consent is upon the government. U.S. v. Mendenhall, 446 U.S. 544, 557 (1980). The government has not met that burden in this case. Acquiescence to the officers' presence in the home does not provide sufficient grounds from which to infer consent to entry or consent to search. See U.S. v. Shaibu, 920 F.2d 1423, 1427 (9th Cir. 1990); U.S. v. Gwinn, 46 F. Supp.2d 479, 484 (S.D.W.Va. 1999). But, the record does not even show acquiescence in this instance.

In conclusion, for the above-state reasons the court shall grant the motion to suppress evidence obtained from the October 13, 2000 searches of defendant's home.

IT IS SO ORDERED.