In a controlled delivery of a box of marijuana to an address on Fort Campbell, Kentucky, officers got a verbal search authorization from the on duty base magistrate. The box was left on the porch because no one was home. They waited for somebody to take the package inside, it was, and then they came to the door. A “verbally hostile teenager” answered the door, and he was taken outside. There was no indication anybody else was in the house for Buie purposes. The box was ten feet inside the door, but officers conducted a whole house protective sweep finding drug paraphernalia and unlisted personal firearms. Defendant was charged with it all. The Army Court of Criminal Appeals sustained the search, but this court suppresses. United States v. Keefauver, 2015 CAAF LEXIS 547 (C.A.A.F. June 12, 2015), reversing 73 M.J. 846 (Army Ct. Crim. App. 2014):
It is thus eminently clear both that a protective sweep of the home “is decidedly not ‘automati[c],'” Buie, 494 U.S. at 336, and that the facts in this case fails the test laid out in Buie. A protective sweep of the home requires specific, articulable facts and rational inferences from those facts supporting two beliefs: (1) that the areas to be swept harbor one or more individuals and (2) that the individual or individuals pose a danger to the agents or others. Id. at 334. The Government did not attempt to prove that the searching officer held either such belief, nor did it present facts and inferences that would objectively support either such belief.
The searching officer, SA Roche, did not testify that he believed at any point that additional individuals were present and dangerous. Rather, in perfect opposition to Buie’s caution against “automatic” sweeps, SA Roche stated the sweep was “standard procedure.” While an officer’s mistake of law may sometimes bear on a potential Fourth Amendment violation, Heien v. North Carolina, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014), that is not the case here. “The Fourth Amendment tolerates only reasonable mistakes, and those mistakes … must be objectively reasonable.” Id. at 539. Unlike the North Carolina statute at issue in Heien, id. at 540, Buie’s requirements and its prohibition against automatic sweeps are unambiguous. Any mistake of law on the part of SA Roche was not objectively reasonable. Moreover, in Heien, the officer’s “mistake of law relate[d] to the antecedent question of” reasonable suspicion for a stop, not the search itself, which was done with the appellant’s consent. Id. at 539. “An officer’s mistaken view that the conduct at issue did not give rise to … a [Fourth Amendment] violation — no matter how reasonable — could not change that ultimate conclusion.” Id.
And assuming arguendo that SA Roche had testified to an articulable actual fear, we disagree with both the military judge and the ACCA that the facts presented, even viewed in the light most favorable to the Government, objectively supported a protective sweep of the home. Rather, the available facts supported [*17] only the reasonable inference that no one but TC-D was home that afternoon: Appellant was employed on base; no one testified that they saw anyone enter or exit the home during a period of surveillance of at least one hour prior to the delivery of the package; no one answered the door prior to TC-D’s arrival, id.; and an eight-pound package containing a valuable, illicit substance was left outside for an hour. And during the motions hearing, Inspector Lamp in fact testified to his own inference from these facts that “nobody was home.” In this context, lack of knowledge of the other inhabitants’ whereabouts did not provide an affirmative basis for conducting a protective sweep. See United States v. Colbert, 76 F.3d 773, 778 (6th Cir. 1996); United States v. Hogan, 38 F.3d 1148, 1150 (10th Cir. 1994); see also United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1298 (9th Cir. 1988).
Given the absence of facts supporting the antecedent belief required by the first prong of Buie, that there was another person present in the home, 494 U.S. at 334, the second prong of Buie, which requires articulable facts supporting the belief that the “individual pos[es] a danger to those on the arrest scene,” id., necessarily fails. We nonetheless make clear that, contrary to the belief of the military judge, the presence or suspected presence of drugs without more does not justify a sweep, see, e.g., United States v. Watson, 273 F.3d 599, 603 (5th Cir. 2001), nor does the bare conjecture and bald assertion that “guns follow drugs,” without additional facts. See Taylor, 248 F.3d at 514 (citing United States v. Hatcher, 680 F.2d 438, 444 (6th Cir. 1982)). To suggest, as the military judge did, that the mere presence of drugs justifies a protective sweep of the entire home would effectively eviscerate the exception to the Fourth Amendment contemplated by Buie, which was based entirely on the danger to agents. 494 U.S. at 327, 333-34. We decline to create so broad an exception to the Fourth Amendment.
The Government nonetheless argued at oral argument that a verbally hostile teenager and the odor of marijuana alone justified a rational inference both that other people were present and that they presented a danger to agents. We cannot agree. In light of the other facts suggesting no one else was home, TC-D’s adverse reaction to officers’ stated intention to search without more did not support a reasonable inference that other individuals were present, nor, even if they were, that they presented a danger to agents. TC-D was quickly handcuffed and removed from the house, and he presented no danger to agents. Nor, even were we to consider it, does the lingering odor of marijuana smoke, without more, support a belief that others were present.
