CA10: Protective sweep conducted without RS others present; SW suppressed

Officers came to arrest defendant in his home. They conducted a protective sweep of the entire premises without reason to believe anyone else was present. Their plain views made it into a search warrant, and the search is suppressed. United States v. Bagley, 2017 U.S. App. LEXIS 25461 (10th Cir. Dec. 18, 2017):

C. The protective sweep went beyond either situation identified in Buie.
The district court held that the protective sweep fit the second situation. The government defends this holding but argues that the protective sweep also fit the first situation. The district court and the government are incorrect.

1. The record does not support affirmance based on Buie’s first situation.

The government argues for the first time that the protective sweep fell within the first situation discussed in Buie. Buie’s first situation allowed the deputy marshals to look in “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Maryland v. Buie, 494 U.S. 325, 334, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). Though the government did not raise this argument in district court, we can affirm on alternative grounds when the district court record is adequately developed. United States v. Nelson, 868 F.3d 885, 891 (10th Cir. 2017).

The record provides some relevant information but leaves sizeable gaps pertinent to Buie’s first situation. We know that the ammunition and suspected marijuana were found in the southeast bedroom and that Mr. Bagley was near the front door when he was handcuffed. And by the time the deputy marshals started the protective sweep, Mr. Bagley had already been handcuffed. Appellant’s App’x at 80. But we cannot discern from the record whether Mr. Bagley was inside or outside the house when the protective sweep began. If he was outside the house, Buie’s first situation would probably not allow a protective sweep in the southeast bedroom. See United States v. White, 748 F.3d 507, 510 (3d Cir. 2014) (stating that a protective sweep cannot be justified under Buie’s first situation when the arrest occurs outside the house).

But Mr. Bagley may have been in the living room when the protective sweep began. If he was, there would have been a wall and hallway between Mr. Bagley and the southeast bedroom. See United States v. Archibald, 589 F.3d 289, 293, 298 (6th Cir. 2009) (holding that for purposes of a protective sweep, the kitchen did not adjoin the living room when the two were separated by a solid bar counter obscuring the view between the two rooms). From the record, we cannot discern the length of the hallway or the distance between Mr. Bagley and the southeast bedroom. Thus, we lack enough information in the record to characterize the southeast bedroom and Mr. Bagley’s location as “adjacent.” See United States v. Burrows, 48 F.3d 1011, 1016 (7th Cir. 1995) (noting that the Buie inquiry is “very fact-specific” and that one of the guiding considerations is the house’s “particular configuration”).

In light of the deficiencies in the district court record, we cannot affirm the district court’s ruling based on the government’s newly asserted reliance on Buie’s first situation. See United States v. Nelson, 868 F.3d 885, 891 (10th Cir. 2017) (declining to affirm the suppression of evidence, based on Buie’s first situation, because the district court had “made no findings regarding the proximity of the location of [the defendant's] arrest to the area that [the law enforcement officer] ultimately searched”).

The government argues that it doesn’t matter where Mr. Bagley was at the time of the protective sweep because he had earlier been “arrested” in the southeast bedroom. With this focus on the place of the purported earlier arrest, the government argues that the deputy marshals could enter the southeast bedroom because Mr. Bagley had announced his surrender when he was in the southeast bedroom, rendering him under “arrest” at that time. Based on the alleged location of the arrest as the southeast bedroom, the government argues that the deputy marshals could later enter that room to conduct a protective sweep based on Buie’s first situation. We disagree.

The meaning of “arrest” can vary based on context. For example, when applying the Fourth Amendment to an arrest in a public area, we consider an “arrest” to take place when the individual submits to authority. See California v. Hodari D., 499 U.S. 621, 626-27, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991). But in applying the Speedy Trial Act, some courts consider an “arrest” to take place when the individual has been formally charged with a crime. E.g., United States v. Sayers, 698 F.2d 1128, 1131 (11th Cir. 1983). What about the context of Buie’s first situation, when pinpointing the timing of the arrest bears only on whether the searched area adjoins the place of the arrest?

In this context, we consider the purpose of the protective sweep. Under Buie, the officers can conduct a cursory inspection of the area adjoining the place of arrest to prevent a danger to those at the scene. See United States v. Maddox, 388 F.3d 1356, 1363 (10th Cir. 2004) (“[W]e conclude that it is proper to consider the reasonable threats posed to the officers when drawing the boundaries of the arrest scene in an individual case.”). Here, a prudent officer would have been conducting the protective sweep when Mr. Bagley was already handcuffed.

Rather than allege a potential danger, the government defends inspection of the southeast bedroom on the ground that the arrest had taken place there. For this argument, the government reasons that Mr. Bagley submitted to authorities when he announced from the southeast bedroom that he would surrender. But at that point, Mr. Bagley was unrestrained, free to renege on his promise to surrender. That freedom ended only when he was handcuffed near the front door. Therefore, in the context of Buie’s first situation, the place of arrest was near the front door rather than in the southeast bedroom.

But let’s assume for the sake of argument that Mr. Bagley was technically under arrest while still in the southeast bedroom (when he told the officers that he would come out and surrender). According to the government, the protective sweep could encompass the southeast bedroom because Mr. Bagley had been arrested there. But he was not handcuffed until after he had left the bedroom.

The deputy marshals could conduct a protective sweep only if the protective sweep was justified at the time of the arrest; the deputy marshals could not conduct the arrest and later conduct a protective sweep based on an earlier arrest somewhere in the house. See Vale v. Louisiana, 399 U.S. 30, 33, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970) (“A search may be incident to an arrest ‘only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.’” (quoting Shipley v. California, 395 U.S. 818, 819, 89 S. Ct. 2053, 23 L. Ed. 2d 732 (1969))). In these circumstances, we conclude that the protective sweep did not fall within the first situation identified in Buie.

2. The protective sweep did not fit Buie’s second situation.

The district court concluded that the protective sweep fit Buie’s second situation. We disagree.

In the second situation for a protective sweep, officers can search beyond adjacent areas upon “‘specific and articulable facts’” supporting an objective belief that someone dangerous remains in the house. Maryland v. Buie, 494 U.S. 325, 332-34, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). The government concedes that its reliance on Buie’s second situation is no longer tenable under United States v. Nelson, 868 F.3d 885 (10th Cir. 2017). We agree.

When the deputy marshals entered the southeast bedroom, Mr. Bagley, his girlfriend, and her children had already left the house. The deputy marshals had no way of knowing, one way or another, whether anyone besides Mr. Bagley was still in the house. This uncertainty, according to the government, would have concerned the officers because they might have been subjected to an attack if someone else had remained inside.

We recently rejected an identical argument in Nelson. There too the government relied on the officers’ inability to know whether someone else was inside. 868 F.3d at 889. But we held that lack of knowledge cannot constitute the specific, articulable facts required by Buie. Id. For this holding, we reasoned that if officers lack any information about whether someone remains inside a house, they do not have the specific, articulable facts required for a protective sweep beyond the adjacent areas. Id.; see also United States v. Carter, 360 F.3d 1235, 1242-43 (10th Cir. 2004) (stating that a protective sweep cannot be based on the possibility that a dangerous person could be concealed without specific, articulable facts that someone was concealed). This lack of specific, articulable facts required invalidation of the search in Nelson, and the same is true here.

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