Defendant showed a substantial enough question for appeal on the legality of a protective sweep that led to a plain view, so he gets bail pending appeal. United States v. Roark, 2019 U.S. Dist. LEXIS 198264 (W.D. Tex. Nov. 15, 2019):
Applying this standard, the Court believes that the suppression issue Roark has preserved for appeal is a “substantial question.” The evidence and argument to support the district judge’s denial of the motion to suppress is well articulated in the judge’s order. See Dkt. No. 53. But as noted in the motion for bond pending appeal, there is room for argument regarding the justification the police officers offered for conducting the protective sweep they performed on Roark’s residence. The Government’s argument, accepted by the district judge, was that Roark’s yelling when officers brought him toward his apartment, combined with what was known about Roark and his affiliations, created exigent circumstances that would lead a reasonable officer to believe that the apartment harbored one or more individuals who posed a danger to those on the arrest scene. This question is debatable, given the evidence from the body cameras of several of the officers at the scene. For example, Roark was arrested well away from his apartment, the apartment was on the second floor and he was on the ground level (in custody and handcuffs), while there was at least one, if not two, officers immediately in front of the apartment door, making it difficult for anyone in the apartment to exit the apartment, access the stairway, and approach the arrest scene—which was one floor below. It was the officers who approached the apartment, knocked on the door, and confronted the other occupant of the apartment. No one in the apartment ever attempted to exit prior to this. The body camera video also creates a substantial question regarding whether the lead officer was well aware that Roark’s yelling was primarily a request for his girlfriend to call his attorney, as the officer stated more than once in phone conversations with the officer who drafted the warrant that Roark was telling his girlfriend to “call his lawyer, to call George.” This is potentially inconsistent with the officer’s testimony that he understood Roark’s yelling as a request for “confederates” to come to his aid or to interfere with the arrest. Further, the demeanor of each officer who was at the residence door prior to the protective sweep was arguably inconsistent with an officer who feared for his safety because he believed there might be confederates in the apartment intending to intervene in the arrest or approach the arrest scene. Instead, the officers all appeared relaxed, and calmly chatted with Roark’s girlfriend while they awaited instructions on whether to enter the apartment.
Finally, there is no real dispute that, if the question is decided the other way on appeal, it is likely to result in either a reversal or an order for a new trial. Roark was convicted, after a conditional plea of guilty, of being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1). The firearms and ammunition were discovered as a result of being seen by the officers who conducted the protective sweep, and that information was the probable cause that led to the search warrant the officers obtained to seize the weapons. If the protective sweep was unconstitutional, it seems clear that the evidence seized pursuant to the warrant would constitute proverbial “fruit of the poisonous tree” and therefore be subject to suppression. See Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307 (1939). Without that evidence, the Government’s case is seriously, if not fatally, impaired.