NOT RECOMMENDED FOR PUBLICATION File Name: 25a0267n.06
No. 24-3327
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT May 30, 2025 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE SOUTHERN ) DISTRICT OF OHIO ANTOINE DWAYNE RILEY, ) Defendant-Appellant. ) OPINION )
Before: MOORE, GRIFFIN, and KETHLEDGE, Circuit Judges.
GRIFFIN, Circuit Judge.
Law enforcement officers conducted a protective sweep of defendant Antoine Riley’s
bedroom following a standoff and located two firearms in plain view. A jury subsequently
convicted him of being a felon in possession of a firearm. He appeals the district court’s denial of
his motion to suppress the evidence gathered from the protective sweep. We affirm.
I.
Early one morning, Riley’s mother called 911 and reported that he had assaulted her in
their home. When Columbus Police officers responded, she told them that Riley “had thrown her
down on the ground and stomped her in the head and face several times.” Officers also observed
her corroborating “visible injuries.” The officers then entered the home to contact Riley; he
responded by barricading himself in his upstairs bedroom—his deadbolted door was just off the
first floor living room, with stairs behind the door leading up to a small bedroom. During the
almost two-hour standoff, officers learned Riley had guns in his bedroom. They also obtained No. 24-3327, United States v. Riley
warrants to arrest Riley for domestic violence and assault but did not obtain any search warrants.
Before they could carry out the arrest warrants, Riley came downstairs and peacefully surrendered
in the living room. What briefly happened next is central to this appeal.
Four officers began a protective sweep of Riley’s bedroom, which they captured on their
body cameras. From the base of the stairs, Officer Kevin Kelley announced, “Columbus Police,
make yourself known” and ascended to the bedroom with his service weapon drawn. Other
officers followed. The bedroom was lofted and open with no door at the top of the steps. The
officers briefly looked around the extremely cluttered and confined living space, including in a
closet without doors. About twenty seconds after entering, officers can be heard saying “clear,
clear” and “all clear” and started lowering their weapons. Kelley then asked whether anything was
in “plain view.” Seconds later, Kelley discovered two firearms in an open cardboard box that was
in the doorway of the open closet. All told, officers were in the bedroom for a little over one
minute.
A grand jury indicted Riley, a felon, for unlawfully possessing those two weapons under
18 U.S.C. § 922(g)(1). Riley moved to suppress the guns, asserting that the officers had exceeded
their authority to engage in a protective sweep by looking for items in plain view after concluding
the room was “clear” of potential threats. Following a hearing, the district court disagreed and
denied his motion. A jury ultimately convicted Riley as charged, and he now appeals the denial
of his motion to suppress.
II.
A.
The Fourth Amendment guarantees that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
-2- No. 24-3327, United States v. Riley
violated,” and it provides that “no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the persons or things
to be seized.” U.S. Const. amend. IV. As a result, “a warrantless search is per se unreasonable
subject only to a few specifically established and well-delineated exceptions.” United States v.
Trice, 966 F.3d 506, 512 (6th Cir. 2020) (citation omitted). The government relies on one of those
exceptions: the protective sweep.
There are two types of protective sweeps. “The first type allows officers to ‘look in closets
and other spaces immediately adjoining the place of arrest from which an attack could be
immediately launched.’” United States v. Archibald, 589 F.3d 289, 295 (6th Cir. 2009) (quoting
Maryland v. Buie, 494 U.S. 325, 334 (1990)). This “first type of sweep requires no probable cause
or reasonable suspicion.” Id. “The second type of sweep goes beyond immediately adjoining
areas but is confined to . . . protective sweep[s] aimed at protecting the arresting officers.’” Id.
(internal quotation marks and brackets omitted). It requires “articulable facts which, taken together
with the rational inferences from those facts, would warrant a reasonably prudent officer in
believing that the area to be swept harbors an individual posing a danger to those on the arrest
scene.” Id. (citation omitted).
B.
Riley primarily contends on appeal that the officers lacked authority to sweep the bedroom
at all. He argues that neither type of protective sweep contemplated by Buie justifies the officers’
search of the room because (1) the room was not “immediately adjoining the place of arrest” and
(2) no facts suggested another individual was in the bedroom.
But that is not the argument he pressed in district court. In his motion to suppress,
defendant did not contest the lawfulness of the protective sweep under Buie and instead argued
-3- No. 24-3327, United States v. Riley
that the “officers no longer had a lawful purpose to remain in the bedroom” after they “cleared” it
and that “[a]s soon as the bedroom was cleared, the Government’s lawful right to be in the room
ended.” To be sure, his briefing suggested a challenge under the second type of search; he wrote
that “at no point in time did the officers hold a reasonable belief that another individual was present
in the bedroom, making the protective sweep unnecessary in the first place.” But at the hearing
on Riley’s motion, the district court clarified Riley’s argument, directly asking his counsel if she
was “making the argument that there shouldn’t have been a protective sweep in the first place?”
She responded: “Absolutely not. . . , the protective sweep is completely appropriate.” For this
reason, the district court’s order on the motion to suppress states that “Mr. Riley did not contest
the Officers’ right to conduct a protective sweep of the upstairs bedroom adjacent to his place of
arrest.”
Having affirmatively disclaimed any argument that the officers lacked the authority to enter
his bedroom and sweep it under Buie, Riley waived any ability to advance the opposite argument
on appeal. See, e.g., United States v. Akridge, 62 F.4th 258, 263 (6th Cir. 2023). And defense
counsel’s questioning during the evidentiary hearing about the presence of others in the house was
not enough to preserve the Buie argument. It was that line of inquiry that prompted the district
court’s clarifying question on the officers’ authority to protectively sweep his bedroom. Therefore,
we cannot review this waived argument. See id.
C.
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NOT RECOMMENDED FOR PUBLICATION File Name: 25a0267n.06
No. 24-3327
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT May 30, 2025 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE SOUTHERN ) DISTRICT OF OHIO ANTOINE DWAYNE RILEY, ) Defendant-Appellant. ) OPINION )
Before: MOORE, GRIFFIN, and KETHLEDGE, Circuit Judges.
GRIFFIN, Circuit Judge.
Law enforcement officers conducted a protective sweep of defendant Antoine Riley’s
bedroom following a standoff and located two firearms in plain view. A jury subsequently
convicted him of being a felon in possession of a firearm. He appeals the district court’s denial of
his motion to suppress the evidence gathered from the protective sweep. We affirm.
I.
Early one morning, Riley’s mother called 911 and reported that he had assaulted her in
their home. When Columbus Police officers responded, she told them that Riley “had thrown her
down on the ground and stomped her in the head and face several times.” Officers also observed
her corroborating “visible injuries.” The officers then entered the home to contact Riley; he
responded by barricading himself in his upstairs bedroom—his deadbolted door was just off the
first floor living room, with stairs behind the door leading up to a small bedroom. During the
almost two-hour standoff, officers learned Riley had guns in his bedroom. They also obtained No. 24-3327, United States v. Riley
warrants to arrest Riley for domestic violence and assault but did not obtain any search warrants.
Before they could carry out the arrest warrants, Riley came downstairs and peacefully surrendered
in the living room. What briefly happened next is central to this appeal.
Four officers began a protective sweep of Riley’s bedroom, which they captured on their
body cameras. From the base of the stairs, Officer Kevin Kelley announced, “Columbus Police,
make yourself known” and ascended to the bedroom with his service weapon drawn. Other
officers followed. The bedroom was lofted and open with no door at the top of the steps. The
officers briefly looked around the extremely cluttered and confined living space, including in a
closet without doors. About twenty seconds after entering, officers can be heard saying “clear,
clear” and “all clear” and started lowering their weapons. Kelley then asked whether anything was
in “plain view.” Seconds later, Kelley discovered two firearms in an open cardboard box that was
in the doorway of the open closet. All told, officers were in the bedroom for a little over one
minute.
A grand jury indicted Riley, a felon, for unlawfully possessing those two weapons under
18 U.S.C. § 922(g)(1). Riley moved to suppress the guns, asserting that the officers had exceeded
their authority to engage in a protective sweep by looking for items in plain view after concluding
the room was “clear” of potential threats. Following a hearing, the district court disagreed and
denied his motion. A jury ultimately convicted Riley as charged, and he now appeals the denial
of his motion to suppress.
II.
A.
The Fourth Amendment guarantees that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
-2- No. 24-3327, United States v. Riley
violated,” and it provides that “no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the persons or things
to be seized.” U.S. Const. amend. IV. As a result, “a warrantless search is per se unreasonable
subject only to a few specifically established and well-delineated exceptions.” United States v.
Trice, 966 F.3d 506, 512 (6th Cir. 2020) (citation omitted). The government relies on one of those
exceptions: the protective sweep.
There are two types of protective sweeps. “The first type allows officers to ‘look in closets
and other spaces immediately adjoining the place of arrest from which an attack could be
immediately launched.’” United States v. Archibald, 589 F.3d 289, 295 (6th Cir. 2009) (quoting
Maryland v. Buie, 494 U.S. 325, 334 (1990)). This “first type of sweep requires no probable cause
or reasonable suspicion.” Id. “The second type of sweep goes beyond immediately adjoining
areas but is confined to . . . protective sweep[s] aimed at protecting the arresting officers.’” Id.
(internal quotation marks and brackets omitted). It requires “articulable facts which, taken together
with the rational inferences from those facts, would warrant a reasonably prudent officer in
believing that the area to be swept harbors an individual posing a danger to those on the arrest
scene.” Id. (citation omitted).
B.
Riley primarily contends on appeal that the officers lacked authority to sweep the bedroom
at all. He argues that neither type of protective sweep contemplated by Buie justifies the officers’
search of the room because (1) the room was not “immediately adjoining the place of arrest” and
(2) no facts suggested another individual was in the bedroom.
But that is not the argument he pressed in district court. In his motion to suppress,
defendant did not contest the lawfulness of the protective sweep under Buie and instead argued
-3- No. 24-3327, United States v. Riley
that the “officers no longer had a lawful purpose to remain in the bedroom” after they “cleared” it
and that “[a]s soon as the bedroom was cleared, the Government’s lawful right to be in the room
ended.” To be sure, his briefing suggested a challenge under the second type of search; he wrote
that “at no point in time did the officers hold a reasonable belief that another individual was present
in the bedroom, making the protective sweep unnecessary in the first place.” But at the hearing
on Riley’s motion, the district court clarified Riley’s argument, directly asking his counsel if she
was “making the argument that there shouldn’t have been a protective sweep in the first place?”
She responded: “Absolutely not. . . , the protective sweep is completely appropriate.” For this
reason, the district court’s order on the motion to suppress states that “Mr. Riley did not contest
the Officers’ right to conduct a protective sweep of the upstairs bedroom adjacent to his place of
arrest.”
Having affirmatively disclaimed any argument that the officers lacked the authority to enter
his bedroom and sweep it under Buie, Riley waived any ability to advance the opposite argument
on appeal. See, e.g., United States v. Akridge, 62 F.4th 258, 263 (6th Cir. 2023). And defense
counsel’s questioning during the evidentiary hearing about the presence of others in the house was
not enough to preserve the Buie argument. It was that line of inquiry that prompted the district
court’s clarifying question on the officers’ authority to protectively sweep his bedroom. Therefore,
we cannot review this waived argument. See id.
C.
We thus turn to Riley’s preserved claim on appeal—that the officers were no longer
lawfully present in his bedroom when they discovered his firearms.
A protective sweep is a “quick and limited search of premises, incident to an arrest and
conducted to protect the safety of police officers or others.” Buie, 494 U.S. at 327. Such sweeps
-4- No. 24-3327, United States v. Riley
do not amount to “a full search of the premises, but may extend only to a cursory inspection of
those spaces where a person may be found” and may “last[] no longer than is necessary to dispel
the reasonable suspicion of danger.” Id. at 335–36. While conducting a protective sweep, an
officer may seize contraband found in plain view if its incriminating character is immediately
apparent. See Horton v. California, 496 U.S. 128, 136 (1990). We measure officer conduct
objectively. See Buie, 494 U.S. at 334.
The district court record demonstrated that the officers discovered the firearms while they
were conducting a lawful protective sweep of the bedroom to ensure their safety. Although the
officers said “clear” several times in the video, the district court did not find that the officers
determined the room was clear before discovering the firearms. During the evidentiary hearing,
the officers explained that using “clear” can mean that only a certain section of a room is clear.
And one officer testified that he believed, based on his inquisitive tone, that he said, “clear” to ask
the other officers if the room was clear in their view. The officers testified also that they holstered
their guns situationally to avoid pointing weapons at one another in the tight quarters and that it
was routine for them to “double-check” the work of others, especially given a recent event in which
officers had “missed” someone hiding in a closet. The district court found this testimony
“credible” and denied Riley’s motion to suppress because the officers “were in the bedroom no
longer than . . . necessary.”
On appeal of a district court’s motion-to-suppress decision, we review the district court’s
“findings of fact for clear error and its conclusions of law de novo.” Archibald, 589 F.3d at 294
(citation omitted). “A factual finding is clearly erroneous when, although there may be evidence
to support it, the reviewing court, utilizing the entire evidence, is left with the definite and firm
conviction that a mistake has been committed.” United States v. Collazo, 818 F.3d 247, 253 (6th
-5- No. 24-3327, United States v. Riley
Cir. 2016) (citation omitted). Because the district court denied the suppression motion, “we must
view the evidence in the light most favorable to the government.” United States v. Smith, 549 F.3d
355, 359 (6th Cir. 2008) (citation omitted).
Viewing the facts in that light, we discern no clear error in the district court’s finding of
fact that the officers were still sweeping Riley’s room when they saw his prohibited firearms in
plain view. As depicted by the body cameras, officers entered a confined and cluttered space with
many places for a person to hide. They swept the room no longer than necessary—less than one
minute—and reasonably checked the work of others as they hastily ensured their safety. See, e.g.,
United States v. Taylor, 666 F.3d 406, 410–11 (6th Cir. 2012); United States v. Beals, 698 F.3d
248, 267 (6th Cir. 2012). That a few seconds passed after the officers began lowering their
weapons and asking if the space was indeed clear is not enough, in our view, to transform the quick
protective search into an unconstitutional one.
III.
For these reasons, we affirm the district court’s judgment.
-6-