United States v. Gould

326 F.3d 651

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 12, 2004
• Docket: 02-30629
• Status: Published

Opinion

United States Court of Appeals Fifth Circuit F I L E D REVISED APRIL 12, 2004 March 24, 2004 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-30629

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

KELLY DONALD GOULD,

Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Louisiana

Before KING, Chief Judge, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DEMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT and PRADO, Circuit Judges.*

GARWOOD, Circuit Judge:

In this felon-in-possession prosecution (18 U.S.C. §

922(g)(1)), the Government appeals the district court’s granting of

the motion to suppress filed by defendant-appellee Kelly Donald

* Judge Pickering was not a member of the court when this case was submitted to the court en banc and did not participate in the decision. Gould (Gould).

Louisiana deputy sheriffs, having received on October 17,

2000, a telephone warning that Gould, known to be a convicted felon

with a reputation for violence, was planning to kill two local

judges, went that same evening to the approximately 14 x 60 foot

trailer where Gould lived to talk to him, not then intending to

arrest him. The officers, who had neither a search nor an arrest

warrant, were admitted by another resident of the trailer, Dennis

Cabral, who said Gould was asleep in his bedroom. The officers

entered and proceeded down the hall towards the bedroom Cabral had

indicated. The bedroom door was open, but the officers did not see

Gould, and they then conducted a brief protective sweep for him,

looking under the bed and opening the door to each of the two

bedroom closets, in one of which they saw in plain view, but did

not then seize, three rifles. They promptly then ran outside and

later found Gould hiding in the woods. In subsequent questioning

Gould stated he was keeping the rifles for their owner, a female

acquaintance. Gould was then arrested, executed a consent to

search, and the rifles were then seized.

The district court, granting the motion to suppress the

weapons, held that although “Cabral had apparent authority to

consent to the search of the mobile home . . . he had no apparent

authority to consent to a search of the master bedroom.” The

Government sought to invoke the “protective sweep” doctrine of

2 Maryland v. Buie, 110 S.Ct. 1093 (1990). However, the district

court, though recognizing that the officers “needed to locate the

defendant for their own safety, so they could make sure he did not

launch a surprise attack from a hidden location,” construed our

opinion in United States v. Wilson, 36 F.3d 1298, 1306 (5th Cir.

1994), as having “explicitly restricted the use of the ‘protective

sweep’ exception to the warrant requirement to searches incident to

arrest,” and thus held that “[b]ecause the ‘protective sweep’ was

not conducted as an incident to arrest, however, the search of the

closet in the master bedroom was illegal.” In denying the

government’s motion for reconsideration, the district court

summarized and confirmed its prior ruling:

“[T]his court noted the defendant’s violent past, and did not dispute that the officers were justified in viewing the defendant as a violent and potentially dangerous individual. Furthermore, the officers’ search of the master bedroom did not exceed the acceptable scope of a protective sweep, which extends only to a cursory inspection of those spaces where a person may be found, and lasts no longer than is necessary to dispel the reasonable suspicion of danger. However, this court found that the initial search was illegal, because it did not meet the requirement that a protective sweep must be incident to an arrest.”

A panel of this court affirmed. United States v. Gould, 326

F.3d 651 (5th Cir. 2003). The panel concluded that it was bound by

Wilson, the most reasonable reading of which was that it laid down

an across-the-board, bright-line rule that, whatever the other

circumstances of a particular case might be, the “protective sweep”

doctrine was always inapplicable if the sweep was not incident to

3 an arrest. Gould at 654-55. The panel, however, suggested the

appropriateness of considering en banc “whether this Circuit should

adhere to Wilson’s ipso facto disallowance of all protective sweeps

not incident to an arrest.” Id. at 655, et seq. We then voted the

case en banc. United States v. Gould, 335 F.3d 376 (5th Cir.

2003).

I.

WHETHER A PROTECTIVE SWEEP MUST ALWAYS BE INCIDENT TO AN ARREST

We turn initially to the primary issue now before us, namely

whether there is an across-the-board, hard and fast per se rule

that a protective sweep can be valid only if conducted incident to

an arrest. We hold there is not.

We begin, of course, with the Supreme Court’s opinion in Buie.

And that opinion does, indeed, begin with the statement that “[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.” Id. at 1094. But there was no dispute in

Buie that the sweep was incidental to arrest, and nothing in Buie

states that if the officers were otherwise lawfully in the

defendant’s home and faced with a similar danger such a sweep would

have been illegal. The Buie Court had no occasion to so state as

the sweep there was indisputably incident to the arrest. We note

that in United States v. Knights, 122 S.Ct. 587 (2001), likewise a

home search case, the Court describes as “dubious logic” the

4 argument “that an opinion upholding the constitutionality of a

particular search implicitly holds unconstitutional any search that

is not like it.” Id. at 590.

We do not suggest that Buie did not emphasize the fact of

arrest. It indeed did. But it did so because the arrest exposed

the officers to danger. Buie at 1098. However, Buie gives no

indication that circumstances other than arrest which expose police

officers to a comparable degree of danger could not also justify a

similar protective response (at least where those circumstances are

not the product of police illegality or misconduct). Similarly,

Buie notes that the arrest there was pursuant to a warrant, so the

officers were lawfully on the premises for a proper purpose. Id.

at 1096 (citing Payton v. New York, 100 S.Ct. 1371 (1980)) and

1097. But nothing in Buie suggests that the result would have been

different had the police otherwise properly entered the house as,

for example, pursuant to a proper consent rather than a warrant.

Cf. Payton at 1374-75 (“We now . . . hold that the Fourth Amendment

. . . prohibits the police from making a warrantless and

nonconsensual entry into a suspect’s home in order to make a

routine felony arrest”) and 1378 (“we are dealing with entries into

homes made without the consent of any occupant”). Moreover, Buie

makes clear that neither the arrest nor the warrant sufficed to

justify the sweep there, which occurred after the arrest and was of

an area of the home well removed from the place of arrest, an area

5 in which the defendant retained a Fourth Amendment protected

privacy interest. Id. at 1097, 1099 (citing the holding in Chimel

v. California, 89 S.Ct. 2034 (1969), that a search incident to an

in-home arrest may not extend beyond the area from within which the

arrestee might then obtain a weapon). Rather, the sweep in Buie

was evaluated on a general Fourth Amendment reasonableness

standard, and was justified, in reliance on the principles of Terry

v. Ohio, 88 S.Ct. 1868 (1968), and Michigan v. Long, 103 S.Ct. 3469

(1983), where there was reasonable suspicion that the area swept

harbored a person posing a danger to the officers present and the

sweep was limited to a cursory inspection of places where a person

may be found and lasted no longer than necessary to dispel the

reasonable suspicion of danger nor longer than what it takes to

complete the arrest and leave the house. Buie at 1096-99.

In Buie, two men, one wearing a red running suit, committed an

armed robbery and later that day an arrest warrant respecting that

offense was issued for Buie and another man (no search warrant was

ever issued). Two days thereafter the police, by having a

telephone call made to Buie’s house which was answered first by a

female and then by Buie, ascertained that Buie was at home, and

then proceeded to his house, entered it and looked for Buie on the

first and second floors. Then Officer Rozar went to the top of the

basement stairs and shouted into the basement stating “‘this is the

police’” and “ordering anyone down there to come out.” Id. at

6 1095. Then,

“Buie emerged from the basement. He was arrested, searched and handcuffed by Rozar. Thereafter, Detective Joseph Frolich entered the basement ‘in case there was someone else’ down there. He noticed a red running suit lying in plain view on a stack of clothing and seized it.” Id. (emphasis added).

The Maryland Court of Appeals reversed Buie’s robbery

conviction holding that the trial court erred by denying his motion

to suppress the running suit because Frolich’s sweep of the

basement was supported neither by a search warrant nor by probable

cause to believe that a serious and demonstrable potentiality for

danger existed there; reasonable suspicion did not suffice. Buie

v. State, 550 A.2d 79 (Md. 1988). The Supreme Court vacated and

remanded, holding that reasonable suspicion sufficed, and that

probable cause was not required, for such a protective sweep.

Buie, 110 S.Ct. at 1094-95.

The Supreme Court, though acknowledging that the arrest

warrant authorized the police to search for Buie anywhere in the

house, including the basement, “until the point of Buie’s arrest,”

id. at 1096 (emphasis added), nevertheless expressly recognized

that “[o]nce he [Buie] was found, however, the search for him was

over, and there was no longer that particular justification for

entering any rooms [i.e., the basement] that had not yet been

searched” and that “Buie had” a Fourth Amendment protected

“expectation of privacy in those remaining areas of his house.”

7 Id. at 1097. This conclusion likewise plainly followed from Chimel

v. California, 89 S.Ct. 752 (1969), which, as Buie noted, “held

that in the absence of a search warrant, the justifiable search

incident to an in-home arrest could not extend beyond the

arrestee’s person and the area from within which the arrestee might

have obtained a weapon.” Buie at 1099. See also id. at 1098

(rejecting argument “that entering rooms not examined prior to the

arrest is a de minimis intrusion that may be disregarded”).

The Buie Court thus noted that at “[i]ssue in this case is

what level of justification the Fourth Amendment required before

Detective Frolich could legally enter the basement to see if

someone else was there.” Id. at 1096. To resolve that issue the

Court invoked the general reasonableness standard of the Fourth

Amendment, balancing the intrusion on the protected interests

against the promotion of legitimate governmental interests,

particularly as guided by Terry and Michigan v. Long. Buie thus

states:

“It goes without saying that the Fourth Amendment bars only unreasonable searches and seizures [citation omitted]. Our cases show that in determining reasonableness, we have balanced the intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests. [citations omitted]. Under this test, a search of the house or office is generally not reasonable without a warrant issued on probable cause. There are other contexts, however, where the public interest is such that neither a warrant nor probable cause is required. [citations omitted].

8 The Terry case is most instructive for present purposes. . . . Applying that balancing test, it was held that although a frisk for weapons ‘constitutes a severe, though brief, intrusion upon cherished personal security,’ [citation omitted] such a frisk is reasonable when weighed against the ‘need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.’

. . .

The [Michigan v.] Long Court expressly rejected the contention that Terry restricted preventative searches to the person of a detained suspect. [citation omitted]. In a sense, Long authorized a ‘frisk’ of an automobile for weapons.

The ingredients to apply the balance struck in Terry and Long are present in this case. . . . In Terry and Long we were concerned with the immediate interest of the police officers in taking steps to assure themselves that the persons with whom they were dealing were not armed with, or able to gain immediate control of, a weapon that could unexpectedly and fatally be used against them. In the instant case, there is an analogous interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. . . .

. . . we hold that there must be 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. This is no more and no less than was required in Terry and Long, and as in those cases, we think this balance is the proper one.” Buie at 1096-98 (emphases added; footnote omitted).1

1 Buie also recognizes as a special category of permissible sweep, one without even reasonable suspicion, of “closets and other spaces immediately adjoining the place of arrest from within which an attack could be immediately launched.” Id. at 1098 (emphasis added). The Buie opinion language concerning the requirement for reasonable suspicion appearing in the penultimate sentence of the quotation set out in the text above applies to sweeps of areas

9 We recognize that, as stated in United States v. United States

District Court, 92 S.Ct. 2125, 2134 (1972), and reiterated in

Payton at 1379-80, 82, “physical entry of the home is the chief

evil against which the wording of the Fourth Amendment is directed”

and “the Fourth Amendment has drawn a firm line at the entrance to

the house.”2 However, Buie makes clear that that worthy principle

does not preclude application in the in-home sweep context of the

general reasonableness standard calculated by balancing the

intrusion on Fourth Amendment interests against the promotion of

legitimate governmental interests, including those of officer

safety. Indeed, Buie expressly noted and rejected the Maryland

Court of Appeals’ refusal to apply the reasonable suspicion

standard of Terry and Long on the ground that “the sanctity of the

home” required a more demanding standard. Id. at 1096. We also

note that recently the Supreme Court in Knights applied the same

“[b]eyond” those “immediately adjoining the place of arrest.” Id. at 1098 (emphasis added). No one has ever contended that the sweep in the present case is within that special category as to which not even reasonable suspicion is required (and which may or may not depend on the fact of arrest). We accordingly do not further address this special category and this opinion’s subsequent discussion of protective sweeps generally should be understood as not referring to it. 2 The Fourth Amendment provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.”

10 general reasonableness, balancing test in upholding a home search,

stating “[t]he touchstone of the Fourth Amendment is

reasonableness, and the reasonableness of a search is determined

‘by assessing, on the one hand, the degree to which it intrudes

upon an individual’s privacy and, on the other, the degree to which

it is needed for the promotion of legitimate governmental

interests.’” Knights at 591 (quoting Wyoming v. Houghton, 119 S.

Ct. 1297, 1300 (1999)).3

Applying this balancing principle, and mindful of Buie’s heavy

reliance on Terry and Long, neither of which involved an arrest, we

hold that arrest is not always, or per se, an indispensable element

of an in-home protective sweep, and that although arrest may be

highly relevant, particularly as tending to show the requisite

potential of danger to the officers, that danger may also be

established by other circumstances. We note in this connection the

statements in Long that “if a suspect is ‘dangerous,’ he is no less

dangerous simply because he is not arrested”, id. at 3481, and “the

officer remains particularly vulnerable in part because a full

custodial arrest has not been effected.” Id. at 3482 (emphasis

3 Knights upheld a reasonable suspicion based law-enforcement (nonprobation related) investigative search without a warrant of a probationer’s home where a condition of probation was a blanket agreement to consent to searches. We also observe that in Terry, the Court stated that the “inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs,” Terry at 1873, and (as Buie noted, 110 S.Ct. at 1098), it rejected the notion that the weapons pat-down there was merely a “petty indignity,” stating that, to the contrary, it was “a serious intrusion upon the sanctity of the person.” Id. at 1877.

11 added). Buie does state that “the risk of danger in the context of

an arrest in the home is as great as, if not greater than, it is in

an on-the-street or roadside investigatory context” such as in

Terry or Long. Buie at 1098. Buie gives two reasons for that

conclusion: first, in the Terry and Long frisk context the

confrontation has “not escalated to the point of arrest” which

involves “taking a person into custody for the purpose of

prosecuting him,” and, second:

“unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” Id.

While the first reason focuses on arrest, the second does not and

seems equally applicable to a police investigatory confrontation in

the home as to an in-home arrest. Accordingly, in the in-home

context it appears clear that even without an arrest other

circumstances can give rise to equally reasonable suspicion of

equally serious risk of danger of officers being ambushed by a

hidden person as would be the case were there an arrest.4

4 Knowles v. Iowa, 119 S.Ct. 484 (1998), relied on by Gould, does not point in a contrary direction. There the Court held that a routine traffic stop of an automobile for speeding, for which no arrest was made and only a citation was issued–where there was no reasonable suspicion of danger–“does not by itself justify . . . a full field-type search” of the car, even though “a full search of the passenger compartment” would be authorized “pursuant to a custodial arrest.” Id. at 488 (emphasis added). There the Court expressly recognized that with reasonable suspicion of danger the officer could conduct a “patdown” both of any occupant of the vehicle and “of the [vehicle’s] passenger compart” under Terry and Long. Id. All Knowles says is that while arrest alone may often be enough to give rise to meaningful concern for officer safety (or destruction of evidence), in the absence of arrest there must be some other circumstances giving rise to

12 Several decisions of other circuits have upheld an in-home

Buie protective sweep even though not incident to an arrest. In

United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992), the D.C.

Circuit dealt, as we do here, with a consent entry case and upheld

the protective sweep of a bedroom in the apartment which the party

authorizing entry (the court assumed arguendo) had no right to

authorize search of, even though the sweep was not incident to an

arrest. The court stated:

“We first note that, even if Smith could not have consented to the search of Patrick’s bedroom, he could, as lessee of the apartment, unquestionably give the police authority to search the rest of it. Once the police were lawfully on the premises, they were authorized to conduct a protective sweep based on their reasonable belief that one of its inhabitants was trafficking in narcotics. . . .We think the holding in Buie, notwithstanding the search there was conducted pursuant to a warrant and not consent, supports the police search here. Accordingly, the police validly entered the bedroom when they looked through the open door and saw Patrick inside.” Id. at 996-97 (emphasis added).

Similarly, in United States v. Taylor, 248 F.3d 506 (6th Cir.

2001), another consent entry case, the court likewise upheld a

protective sweep not incident to an arrest, stating:

“Taylor argues that a protective sweep is authorized only when it is made incident to a lawful arrest. Therefore, he contends, because Hill had not been arrested when the officers made their cursory search of Taylor’s apartment, the sweep was per se invalid. In contrast, the government argues that while Buie and Biggs [United States v. Biggs, 70 F.3d 913 (6th Cir. 1995)]were each decided in the factual context of officers making an

reasonable suspicion of danger.

13 arrest, nothing in those opinions indicates that an arrest is a mandatory prerequisite for conducting a protective sweep of the area. The government further points out that the Buie decision was based upon the reasoning set forth in the Supreme Court’s earlier decisions in Terry and Long, both of which were investigative stop cases.

We believe the government presents the more compelling argument.” Id. at 513.

In United States v. Garcia, 997 F.2d 1273 (9th Cir. 1993), the

court similarly upheld a protective sweep in a consent entry case

where no arrest was made until after the sweep discovered guns in

plain view.5

Also noteworthy is United States v. Daoust, 916 F.2d 757 (1st

Cir. 1990), an opinion by then Judge (now Justice) Breyer. There

the officers, looking through a window into the kitchen of a home,

observed a particularly described pistol hanging over the kitchen

sink. They then procured a search warrant to search for that

particular pistol. Armed with that warrant, they went into the

house, but did not confine themselves to going to the kitchen where

they knew the gun described in the warrant was, but rather

conducted a protective sweep of all the rooms in the house,

discovering in those other rooms other weapons (not covered by the

warrant) in plain view. There was no arrest or attempted arrest.

The First Circuit held that nevertheless the protective sweep was

justified under Buie.

5 Another consent entry case with a similar result is U.S. v. Koubriti, 199 F.Supp.2d 656 (E.D. Mich. 2002).

14 The cases in which the courts have indicated that protective

sweeps must always be incident to arrest, are mostly ones involving

situations where the entry into the house was itself illegal.6

Having held that an in-home protective sweep is not

necessarily or per se invalid, regardless of other circumstances,

merely because it is not incident to an arrest, we accordingly

6 In U.S. v. Davis, 290 F.3d 1239 (10th Cir. 2002), there was an illegal, warrantless entry into the house, which the court held was not justified by exigent circumstances. The constitutionality of the protective sweep is addressed only in a brief footnote, n.4 at 1242-43, where it is rejected because there was no arrest, quoting the first sentence of Buie, and also apparently because it was not narrowly confined to a cursory visual inspection of places where a person might be hiding, as required by Buie.

U.S. v. Reid, 226 F.3d 1022 (9th Cir. 2000), was likewise an illegal entry case, the court holding that the consent to entry had been coerced and that there were no exigent circumstances. The court went on to observe that protective sweep did not apply because there was no arrest and no facts demonstrated that a reasonably prudent officer would have believed that the apartment harbored an individual posing a danger to the officers. Id. at 1027. This was a split decision, and does not cite the Garcia case in which the Ninth Circuit had held that a protective sweep need not be incident to an arrest.

Gould also cites U.S. v. Johnson, 170 F.3d 708 (7th Cir. 1999). That case involved a pat- down search and detention of a person after he had stepped out of the apartment, there was no entry into the apartment, and “no one had consented to a police entry.” Id. at 719. The police did not have a warrant and there was “no reason to believe that Johnson [who was patted down] was carrying a weapon or any kind of illegal substances at the moment he emerged from the apartment, and Johnson himself took no action himself to make them fearful for anyone’s safety.” Id. at 714. Because the detention and pat-down of Johnson was without reasonable suspicion, it was held invalid. Id. at 720. There were three opinions, including a dissent by Judge Easterbrook and a special concurrence by Judge Evans. While the opinion of Judge Wood does contain some references to Buie, and the fact that the pat-down of Johnson was neither incident to an arrest nor a cursory visual inspection of those places in which a person might be hiding, id. at 716, the issues and factual context of Johnson make it completely inapposite here.

15 disapprove of the language to the contrary in Wilson.7 We note,

however, our agreement with Wilson’s ultimate determination that

the challenged search of the wastebasket and seizure of the

checkbook in it could not be justified as a protective sweep. In

the first place, there was no evidence in Wilson indicating any

danger was posed; Wilson was suspected only of stealing from the

mail and nothing suggested he (or anyone else present) was

dangerous or violent or anything of the kind. In the second place,

as Wilson itself properly observes, “the seizure of the checkbook

from the wastebasket was not within the narrow ambit of a ‘cursory

visual inspection’ of a place where a person could be hiding.”

Wilson at 1035-36 (citing Buie, 110 S. Ct. at 1099).8

Thus, in the present case the district court erred as a matter

of law in holding, in its understandable reliance on the language

in Wilson, that a protective sweep could never be valid, regardless

of other circumstances, unless incident to an arrest, and on that

sole basis granting the motion to suppress.

7 We observe that in Wilson the panel either did not cite or did not have available to it the opinions in Patrick, Taylor, Garcia and Daoust. Essentially, Wilson simply assumed that Buie always requires that the sweep be incident to arrest. 8 Wilson also correctly states that the plain view doctrine did not apply, because the checkbook was not in plain view in the bathroom and because the only thing incriminating about the checkbook was the names on the checks, and they were not visible because of the checkbook cover; the incriminating character of the evidence was not immediately apparent. Id. at 1036.

16 II. OTHER PROTECTIVE SWEEP REQUIREMENTS

We now turn to the other requirements for a valid in-home

protective sweep and their applicability here.

A. Other requirements generally

First, it is at least implicit in Buie that although the

protective sweep may extend to areas of the home where the police

otherwise (i.e., apart from the protective sweep doctrine) then

have no right to go, nevertheless when undertaken from within the

home, the police must not have entered (or remained in) the home

illegally and their presence within it must be for a legitimate law

enforcement purpose.9

Further, the protective sweep must be supported “by a

reasonable, articulable suspicion”, Buie at 1099, “that the area to

be swept harbors an individual posing a danger to” those on the

scene. Id. at 1100.

Next, the legitimate protective sweep may not be “a full

search” but may be no more than “a cursory inspection of those

9 Normally, absent a warrant the police may not enter a home except with consent or in “exigent circumstances.” See, e.g., Payton, at 1378; Mincey v. Arizona, 98 S.Ct. 2408, 2413 (1978); U.S. v. Jones, 239 F.3d 716, 719-20 (5th Cir. 2001); U.S. v. Howard, 106 F.3d 70, 73-75 (5th Cir. 1997); U.S. v. Rodea, 102 F.3d 1401, 1404-05, 1408-09 (5th Cir. 1996); U.S. v. Rice, 51 F.3d 495, 500-01 (5th Cir. 1995). Whether (or if so to what extent and under what conditions) the doctrine of “protective sweep” authorizes a warrantless, non-consensual entry into a home that would not be authorized under the more general doctrine of “exigent circumstances” is unclear. See, e.g., U.S. v. Wilson, 306 F.3d 231, 238-39 (5th Cir. 2001); U.S. v. Watson, 273 F.3d 599, 602-03 (5th Cir. 2001); U.S. v. Merritt, 882 F.2d 916, 921 (5th Cir. 1989); Kirkpatrick v. Butler, 870 F.2d 276, 281-83 (5th Cir. 1989). We do not address that question here since under the district court’s adequately supported findings the officers’ entry into the mobile home was legal as pursuant to valid consent.

17 spaces where a person may be found.” Id. at 1099.

Finally, the sweep is subject to two time limitations. First,

it may “last[] no longer than is necessary to dispel the reasonable

suspicion of danger,” id.; and, second, it may last no longer than

the police are justified in remaining on the premises. See id.

(“and in any event no longer than it takes to complete the arrest

and depart the premises”); see also id. at 1098 (police permitted

“to take reasonable steps to ensure their safety after, and while

making, the arrest”).

B. Relevant facts and findings here

1. Introduction

In our review of the district court’s suppression order, we

observe that the only witnesses at the suppression hearing were

three of the deputy sheriffs who were present on the scene, who

were called by the Government, and Cabral, the sole defense

witness. The district court explicitly credited the testimony of

the deputies and refused to credit Cabral’s.10

2. Officers were legally within the mobile home

The testimony of the officers was to the effect that Cabral

met them at the entrance to the mobile home, that they told him

10 The district court stated “this court finds that the detectives’ version of the events of October 17, 2000 is more credible” and “the consistent testimony of these detectives who were sequestered during the evidentiary hearing is more credible than the testimony of the defendant’s friend and partner [Cabral], who was allegedly involved in the murder plot and who has been convicted of several crimes.”

18 they were looking for Gould and wanted to speak to him. Cabral

said that Gould was in his bedroom, indicating where it was, was

probably asleep, and that they were welcome to come in and check it

out. The officers entered, walked toward Gould’s bedroom, noticed

the door was open but did not see Gould, so conducted a brief

protective sweep of the bedroom and its two closets, in one of

which the guns were observed in plain view.11 The district

11 For example, Deputy Ard testified:

“Q. And you spoke to Mr. Cabral and told him why y’all wanted to be there?

A. Yes, sir.

Q. Okay. As I understand it, he said that Gould was in his bedroom?

A. Right.

Q. Did he say it’s okay to go search Kelly Gould’s bedroom?

A. He said, he’s in his bedroom. You are more than welcome to come in and check it out.

Q. All right. But he specifically talked about being in his bedroom, right? He wasn’t in Dennis Cabral’s bedroom?

A. No. He said, his bedroom – if you looking at the trailer, he’s to the left. He said, his bedroom is in the back. He’s in there, and he’s probably asleep.”

Deputy Brown gave similar testimony, viz:

“A. . . . We asked him [Cabral] if Kelly Gould was home, and he said, yes, he is. I believe he’s asleep in his bedroom, and he pointed toward the north end of the trailer where the only bedroom is on that side of the trailer.

We asked him for permission to come inside the residence to see if Kelly Gould was in the trailer. We wanted to speak with him. We did not have any intentions of arresting him at that time. We just simply wanted to talk to him

19 about the incidents that we’ve talked about so far. He said, sure. No problem. Come in.”

...

“Q. Did you in fact enter the trailer at the invitation of Mr. Cabral?

A. Yes, we did.”

“When we entered, we immediately went to the left to the direction where Dennis Cabral had pointed to the bedroom, went toward the bedroom door, which is the only bedroom on that end of the trailer.

When we got to the bedroom, the door of the bedroom was open; so looking for him strictly for officer safety reasons, due to the allegations of wanting to kill police officers, and judges, and those – also the incident that occurred in the courtroom or the Judge’s office earlier that day, officer safety was, you know, a predominate issue in our mind. So we entered his bedroom, which the door was open. We looked on the floor. We looked in a closet area to the right of the bed, any place that he could physically hide his body. There was a closet to the left. The closet door was partially open, but not good enough for me to see inside for a person. I opened the door up, looked briefly to see if he was there, never entering the closet itself, and standing in the corner was three weapons, three rifles.”

“Q. Okay. So, did you ask him [Cabral] if Kelly Gould was there?

A. Yes, I did.

Q. Okay. And he told you, he’s in the back?

A. He told me that he was in his bedroom. He believed him to be asleep. He pointed in the direction to his right, which would have been to my left.”

“Q. Okay. So the only information he gave you was that Kelly Gould was there? He didn’t invite you to come in?

20 court found that “Cabral consented to the entry of the detectives

into the trailer to search for the defendant” and that “the

detectives were reasonable in believing that Mr. Cabral was

authorized to consent to the search.” However, the court found

A. That is not correct. He did let us come in when we asked him, do you mind if we come in and see if he’s there.

Q. Uh-huh.

A. He said, sure. Come in. No problem. And we entered.

Q. All right. And he pointed to the back bedroom where Kelly Gould was?

A. He pointed to the back bedroom that he identified as Kelly Gould’s bedroom.

Q. Did you ask permission to go in that bedroom?

A. No, sir.

Q. You didn’t? All right.

A. But when I approached the bedroom, Kelly Gould’s bedroom, the door was open.

Q. The door of the bedroom was open?

A. That is correct.

Q. You were able to look into the bedroom and look around?

A. Yes.

Q. You went into the bedroom?

Q. Okay. Did you look under the bed?

A. I looked for any place that I thought a human person could be hiding possibly.”

21 that “[b]ecause there was no indication that Mr. Cabral lived in

the master bedroom, he had no apparent authority to consent to a

search of the master bedroom.” We conclude that the only

reasonable construction of the credited testimony is not only that

Cabral consented to the officers’ entry into the mobile home to

look for Gould but also that this consent, at least by the clearest

implication, extended to the master bedroom. This is so because,

although the officers did not specifically and separately mention

the bedroom in asking to come in, they did state they wanted to

talk to Gould and asked if they could come in to see if he was

there, and Cabral responded that Gould was likely asleep in his

bedroom, pointing to it, and stating “you are more than welcome to

come in and check it out.” Cabral, however, lacked any authority,

actual or apparent, to consent to a search of the master bedroom

(although he had at least apparent authority to otherwise consent

to a search of the mobile home), and for that reason the search of

the master bedroom had to be justified as a protective sweep, just

as did the search of the basement in Buie. The district court

declined to justify the search of the bedroom on that basis solely

because the sweep was not incident to an arrest.

We recognize that protective sweeps following a consent entry

may in certain circumstances pose Fourth Amendment concerns not

present in cases where the initial entry is pursuant to a warrant.

For example, concerns might arise respecting a consent to entry

22 requested for a stated common purpose but actually intended not for

that purpose but rather for the purpose of gaining access in order

to then make a protective sweep of the entire home for unrelated

reasons and thus circumvent the warrant requirement. Concerns of

a similar character might also arguably arise where the consent to

entry is given expressly or implicitly only as to a limited area

but the protective sweep extends clearly beyond that area without

anything having developed since entry suggestive of greater or more

imminent danger than that initially apparent just prior to entry.

We do not purport to now ultimately resolve hypothetical cases of

those varieties, for the mentioned kinds of concerns are not

meaningfully implicated here. The credited evidence does not show

and the district court did not find that the officers sought entry

for any purpose other than what they stated to Cabral, namely to

see if Gould was there and to talk to him, and Cabral, knowing that

purpose, consented to the entry. Moreover, the consent which he

purported to give was not either expressly or implicitly limited,

but rather, by the clearest implication, extended to the master

bedroom. Finally, after the officers entered the mobile home and

proceeded down the hall towards the master bedroom and approached,

but before they arrived at, its entrance, they observed that the

bedroom’s door was open; Gould was not in his bed asleep, as Cabral

had just represented, nor was Gould otherwise visible, so the

danger and imminence of ambush then dramatically increased,

23 justifying the few seconds’ “sweep” looking under the bed and

opening the two bedroom closet doors.

We decline to adopt any across-the-board rule that a

protective sweep can never be valid where the initial entry to the

home is pursuant to consent, even where the consent does not of

itself legally authorize the entry into the area swept. Any such

rule either would require officers to forego any and all consent

entries or would prevent them, once having so entered, from taking

reasonable, minimally intrusive, means for self-protection when

reasonable suspicion of the danger of ambush arises. Applying the

general reasonableness standard of Buie and Knights we hold that

the Fourth Amendment imposes no such Hobson’s choice. We note that

a “knock and talk” police investigatory practice has clearly been

recognized as legitimate. See, e.g., United States v. Jones, 239

F.3d 716, 720 (5th Cir. 2001). Certainly, the officers were in the

mobile home for a legitimate governmental purpose, namely

questioning Gould about the information they had received earlier

that day, in two telephone calls from Gould’s employee (or co-

worker) Forehand, an individual otherwise unknown to them, that

Gould, known to be a person prone to violence, was planning to kill

two local judges. As the district court recognized, “the officers

had a legitimate governmental interest in questioning the defendant

about the information they had received.”

In its opinion denying the Government’s motion for

24 reconsideration, the district court faulted the officers on the

basis that “[t]he officers could have approached the defendant as

he left his mobile home one day, or they could have followed him in

any other public place, without necessitating the entry into his

residence,” and that accordingly the officers “created the

dangerous situation by approaching and entering the mobile home.”

Although not explicitly addressed by the district court this raises

the question of the potential applicability of our cases holding

that although exigent circumstances may justify a warrantless

probable cause entry into the home, they will not do so if “the

exigent circumstances were manufactured by the agents.” See, e.g.,

United States v. Rico, 51 F.3d 495, 502 (5th Cir. 1995). We have

indicated that this involves two levels of inquiry, first whether

the officers deliberately created the exigent circumstances with

the bad faith intent to avoid the warrant requirement, and second,

even if they did not do so in bad faith, whether their actions

creating the exigency were sufficiently unreasonable or improper as

to preclude dispensation with the warrant requirement.

Id.(recognizing that in United States v. Socey, 846 F.2d 1439, 1449

(D.C. Cir.), cert. denied, 109 S.Ct. 152 (1988), the D.C. Circuit

rejected going beyond the first level of inquiry). Here, there is

no finding and no evidence to suggest that the officers acted with

the intent to create an emergency to circumvent the warrant

25 requirement.12 We need not and do not here determine whether or to

what extent the second (or “reasonableness”) level of inquiry in

our manufactured exigent circumstances cases, which involve

situations where the entry into the home otherwise contravenes the

Fourth Amendment, should be applicable to situations such as the

present one where the entry is pursuant to a valid, non-pretextual

consent as above described. This is because even under that second

level of inquiry the officers’ actions here may not be deemed to

have been improper. Our exigent circumstances cases have

consistently held in this regard that “we will not second-guess the

judgment of law enforcement officers where reasonable minds may

differ.” United States v. Howard, 106 F.3d 70, 76 (5th Cir. 1997);

United States v. Rodea, 102 F.3d 1401, 1410 (5th Cir. 1996); Rico

at 505. Here there is absolutely no testimony that the tactics or

procedures followed by the officers were unreasonable or contrary

to standard or good law enforcement practices (or to the policies

or practices of their jurisdictions). There is no evidence that

the officers ever observed Gould away from his home so that they

could have followed him and approached him in a public place, or

that they had any idea of where he might be other than the mobile

home. The information that the officers received on the evening of

October 17 was that Gould, known as a dangerous and violent person,

12 Had the officers acted with such improper motive or intent, we assume such would have invalidated the sweep.

26 was planning to kill two particular local judges. Clearly,

reasonable officers could conclude that the appropriate course of

conduct was to go directly to the mobile home, which is where

Forehand told them Gould was, rather than wait until “one day”,

which might well be a day after someone was killed.13

We conclude that the officers were legally within the mobile

home for a legitimate governmental purpose when the protective

13 In its original opinion the district court found that “[t]he detectives would not have arrested the defendant if they had not found the firearms in the closet, because they would have had no probable cause that he had committed a crime” (emphasis added). This was doubtless based on, among other things, the testimony of Officer Brown who stated that prior to seeing the guns in the closet “I had no knowledge there was weapons in the house.” However, in its opinion denying the Government’s motion for reconsideration, the court states, without referring to its initial opinion, that “. . . the officers could have obtained a valid search warrant based on the information provided to them by Mr. Forehand. Mr. Forehand informed the officers that, while at the mobile home one day, the defendant had retrieved a twenty-two caliber rifle, equipped with a scope, from his bedroom and showed it to him. Mr. Forehand also reported that Gould described additional weapons that he owned. (See Affidavit of Officer Leonardo Moore, East Baton Rouge Sheriff’s Office, p. 3). With this information and the officers’ knowledge that the defendant was a convicted felon, the officers should have obtained a search warrant for the mobile home . . . .” The only cited support is the referenced affidavit of Moore, which is dated July 25, 2001, and is attached to the original criminal complaint in this case. As the Government has consistently pointed out, while the Moore affidavit does state that Forehand so advised the officers, it is clear from the affidavit itself, as well as from the record as a whole, that he did so only on being questioned by the officers at the trailer after Gould’s arrest. On this appeal, Gould has consistently recognized that that is the case, and has indeed emphasized that the officers did not have probable cause to arrest Gould until they saw the guns in the closet. Thus, in oral argument to the panel Gould’s counsel asserted that before looking into the closet “they [the officers] had no information as the Government pointed out that he had a gun” and “[t]hey [the officers] didn’t know about the guns.” Similarly, at oral argument to the en banc court Gould’s counsel stated “keep in mind, these folks [the officers ] had no probable cause. They didn’t even know there were guns in the house.” Accordingly, we disregard the district court’s search warrant finding as it is clearly based on a misapprehension of the evidence. We need not and do not determine what the legal effect of this finding would have been.

27 sweep was undertaken.

3. The officers had reasonable suspicion of danger

When the open bedroom door revealed that Gould was not in bed,

as had just previously been represented to the officers, or

otherwise visible to them, a reasonable basis for suspicion arose

that Gould, whom they had been informed was prone to violence and

was plotting to kill two judges, might be hiding in the room and

posing an imminent danger to the officers. Gould has not

challenged this, and the district court found that the officers

“needed to locate the defendant for their own safety, so they could

make sure he did not launch a surprise attack from a hidden

location” and that the bedroom sweep lasted “no longer than . . .

necessary to dispel the reasonable suspicion of danger.” This

element of a legitimate protective sweep is clearly satisfied.

Judge Smith’s dissent asserts that the district court’s

conclusion that the officers were justified in viewing Gould as a

threat to their safety is based on the court’s concededly erroneous

statement in its opinion on reconsideration that Forehand had told

the officers in his call earlier that day that Gould had firearms

at the trailer, so the officers, knowing Gould was a convicted

felon, could, and hence should, have first procured an arrest

warrant. Judge Smith then asserts that because the officers lacked

such knowledge (in its initial opinion, the district court found

that the officers lacked probable cause to arrest Gould until they

28 saw the firearms in the bedroom closet, see note 13, supra) they

had no legitimate safety concern justifying the protective sweep

when they saw Gould was not in his bed. Judge Smith’s reasoning in

this respect basically confuses probable cause with reasonable

suspicion. In Buie the Supreme Court expressly rejected the

Maryland Court of Appeals’ holding that a protective sweep required

“probable cause to believe” there was “‘a serious and demonstrable

potentiality for danger,’” id. at 1096, and went on to hold that

the reasonable suspicion standard of Terry and Long governed. Here

there is no evidence that the officers had been specifically told

that Gould had weapons at the trailer. On the other hand, the

credited – indeed the undisputed – testimony is that the officers

had been told by Forehand that Gould “had planned to go on a

killing spree killing judges, police officers, and minority groups

. . . and that he was going to go to some type of place after he

did these incidents and hide from the police, and those kinds of

things, and snipe anybody out that tried to come in and take him

into custody.”14 That a person is planning to go on such a wide

killing spree – and thereafter “snipe” at those who might try to

take him into custody – certainly suggests that that person has, at

the least, ready access to lethal weapons.15 As a matter of law,

14 The officers also knew Gould had several arrests and at least one felony conviction for a crime of violence and was known for violent behavior. 15 Nothing in the record intimates that the officers had any information even suggesting that Gould did not have or have ready access to a firearm or firearms or other lethal weapons.

29 the credited testimony establishes that the officers had the

requisite reasonable suspicion of enhanced danger when they, at

night on Gould’s turf, saw that Gould was not in his bed asleep, as

Cabral had just told them he was.16

4. The sweep was properly limited in scope and duration

The district court found that “the officers’ search of the

master bedroom did not exceed the acceptable scope of a protective

sweep, which extends only to a cursory inspection of those spaces

where a person may be found, and lasts no longer than is necessary

to dispel the reasonable suspicion of danger.” The credited

evidence clearly supports these findings and satisfies those

elements of a legitimate protective sweep.

If the fact that Gould was not in his bed or otherwise visible

in the bedroom can be taken as signifying a refusal on his part to

talk to the officers and in that sense a termination of their

16 Where the relevant historic facts are undisputed (or are established by adequately supported district court findings) whether or not there is reasonable suspicion is a question of law. See, e.g., Blackwall v. Burton, 34 F.3d 298, 305 (5th Cir. 1994); United States v. McSween, 53 F.3d 684, 687 n.5 (5th Cir. 1995); 5 LaFave, Search and Seizure (3d Ed.) § 11.7(c) at 406-07 (“. . . the clearly erroneous standard is applied to severable underlying facts while the de novo standard is applied to the ultimate question whether those facts add up to reasonable suspicion”). Moreover, it is clear that the district court never found there was not the requisite reasonable suspicion. On the contrary, it described its holding as follows: “[t]his court noted the defendant’s violent past, and did not dispute that the officers were justified in viewing the defendant as a violent and potentially dangerous individual . . . the officers’ search of the bedroom did not exceed the acceptable scope of a protective sweep, which . . . lasts no longer than is necessary to dispel the reasonable suspicion of danger.” (emphasis added).

30 consent to be in the mobile home for that purpose,17 nevertheless

that does not mean that the officers could not conduct the sweep.

They did not have to go back out of the mobile home without taking

some brief, minimally intrusive steps to protect themselves against

ambush as they were on the way out. In Buie effectuating arrest

was the only justification for being in the home, but the sweep of

the basement was not commenced until Buie was already arrested,

searched and handcuffed on the first floor. Buie at 1095. The

court made clear that the sweep authority extended until the

officers not only complete the arrest but also “depart the

premises,” id. at 1099, and that the officers were permitted “to

take reasonable steps to ensure their safety after, and while

making, the arrest.” Id. at 1098 (emphasis added). Indeed, here,

just as the brief sweep of the bedroom was completed the officers

heard someone yell that Gould had departed the mobile home through

a back door, and they “immediately” likewise departed the bedroom

and went outside looking for Gould.18

17 And it is not clearly evident that that is so. There was certainly reasonable suspicion that Gould was hiding under the bed or in the closets, but such suspicion does not exclude the reasonable possibility that he had innocently stepped outside without intending to avoid the officers. Reasonable suspicion is just that, it is not probable cause or a more likely than not standard, and it does not exclude other reasonable possibilities. 18 Officer Brown testified: “After I determined immediately that he wasn’t in the room, I started to exit the bedroom, and at that time somebody in – and I don’t remember who it was at this time – yelled, I think he just ran out of the back door, which is nearby, near the bedroom area. So I looked and, sure enough, the back door was wide open. So immediately I jumped out the back door looking to see if I could get a visual on

31 The challenged protective sweep was properly limited in scope

and duration.

Conclusion

We hold that a protective sweep as authorized by Buie need not

always be incident to an arrest. The district court erred in

holding otherwise. Applying the standards and limitations

articulated in Buie and the general reasonableness criteria of the

Fourth Amendment, we conclude that the protective sweep here was

valid. The district court’s suppression order is accordingly

REVERSED.

him to try to locate him.”

32 E. GRADY JOLLY, Circuit Judge, concurring in part and dissenting in

part:

I agree that a protective sweep need not be conducted incident

to arrest to be valid under the Fourth Amendment. The

constitutionality of such searches must be assessed under a

standard of general reasonableness, in consideration of the factors

discussed by the majority.

I also agree that the “knock and talk” is usually a legitimate

law enforcement tool, and that the officers in this case were

legally in Gould’s home based on Cabral’s consent.

Under the totality of the circumstances, however, it was

unreasonable for the police to enter Gould’s bedroom and search his

closets, essentially for the reasons discussed by Judge Smith. It

seems to me that if the door to the bedroom had been closed -- or

even if Gould had been in the room -- the search could have been

justified by the majority on basically the same grounds (risk of

ambush, etc.) it has used to justify the search of an open room in

the absence of the subject.

I therefore would affirm the suppression of the evidence.

33 JERRY E. SMITH, Circuit Judge, dissenting:

I respectfully dissent from the majority’s result and from

much of its analysis, largely on the basis ably expressed by Judge

DeMoss in dissent. I agree, however, with the majority’s con-

clusion that United States v. Wilson, 36 F.3d 1298 (5th Cir. 1994),

is in error and must be overruled.

Maryland v. Buie, 494 U.S. 325 (1990), is no exception to the

longstanding view that “[t]he touchstone of the Fourth Amendment is

reasonableness, and the reasonableness of a search is determined

‘by assessing, on the one hand, the degree to which it intrudes

upon an individual’s privacy and, on the other, the degree to which

it is needed for the promotion of legitimate governmental inter-

ests.’” United States v. Knights, 534 U.S. 112, 118-19 (2001)

(quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). Buie es-

tablished that a search very much like the present one was reason-

able; that conclusion alone is an insufficient basis for deciding

(as the panel in this case was precedent-bound to do) that the

present search is presumptively invalid, no matter how reasonable.

The majority correctly identifies a number of the factors that

are important to assessing the reasonableness of the officers’ deci-

sion to conduct a protective sweep. SomeSSsuch as the requirement

that the search be performed for the safety of the officers; the

necessity of having articulable facts from which an officer rea-

34 sonably could apprehend danger; the importance of limiting the

search to a cursory visual inspection of those places that could

hide a person; and the cap on the duration of the searchSScome dir-

ectly from Buie, 494 U.S. at 333-36. OthersSSsuch as the legitimacy

of the officers’ presence and purpose on the scene; the validity and

scope of their consent to enter the home; the requirement that facts

justify the sweep arise after officers obtain consent to enter for

a conversation; and the potentially pernicious effect of allowing

officers to themselves create the justification for a sweepSSare

reasonable and insightful attempts to compensate for the critical

distinction between this case and Buie: the absence of an arrest or

arrest warrant.19

A faithful application of these principles does not, however,

lead to the conclusion that the protective sweep was reasonable.

At best, it seems we are ill-equipped to reach that conclusion,

relying as we must on nothing more than a paper record compiled un-

der the mistaken impression that the reasonableness of the search

was wholly irrelevant to its constitutionality. This matter should

be remanded so that the rule that the majority properly crafts can

be applied in a hearing convened for the purpose of elucidating

those facts that bear directly on the reasonableness of the sweep.

19 See slip op. at 24-25 (legitimacy of purpose); id. at 23-24 (validity and scope of consent); id. at 23 (concern that sweeps will be attempted after obtaining consent but before new facts indicate a heightened danger); id. at 25-27 (potential that sweep would be improper if of- ficers unnecessarily created dangerous situation). 35 Solely on the basis of the scant record now on appeal, the

sweep was unreasonable, so the order granting the motion to suppress

should be affirmed. Although I agree with most of the persuasive

critiques found in Judge DeMoss’s forceful dissent, and although I

share his concern that there is no such thing as valid consent where

the consenting party has no idea that the officers will then be

entitled to conduct a search, I write separately to focus on one

particularly serious flaw in the majority’s analysis.

I start with a point also made by Judge DeMoss: The majority

puffs this court’s assessment of the “knock and talk” strategy, tak-

ing what was once “not inherently unreasonable,” United States v.

Jones, 239 F.3d 716, 720 (5th Cir. 2001), and making it something

that has “clearly been recognized as legitimate.” Slip op. at 25

(citing only Jones as authority). That is quite a transformation

in only three years’ time.

I doubt even the majority would contend that this now “clearly

. . . legitimate” tactic, which consists primarily of approaching

a suspect at his home to seek his voluntary cooperation in an inves-

tigation, presents the compelling sort of interest found in the

officers’ duty to execute an arrest warrant. Officers use “knock

and talk” encounters as just one of the many available investigative

tools, and they do so hoping that they will be able to determine

whether there even exists the probable cause that is necessary to

obtain an arrest or search warrant.

36 In seeking the proper balance between privacy and the promotion

of legitimate governmental interests, Houghton, 526 U.S. at 300, it

may well be that our decisions “mean that the police use a tactic

like ‘knock and talk’ somewhat less frequently, but that may be the

price of compliance with the Fourth Amendment.” United States v.

Johnson, 170 F.3d 708, 718 (7th Cir. 1999). There are other lawful

ways for police to pursue their investigation without testing the

limits of the Fourth Amendment, includingSSas the district court

foundSSby returning another day when Gould was present and amenable

to speaking with them.

I make this point only to highlight a significant principle

that the majority opinion recognizes but fails to invoke: However

high the government’s interest in protecting its officers, there

must be some other legitimate purpose for which officers secure

themselves. See slip op. at 25. A search that does nothing more

than allow the officers safely to remain in a place where they have

no reason or right to be will, of necessity, be unreasonable in all

but the rarest of circumstances. The majority’s assessment that the

police have a legitimate interest in pursuing “knock and talk”

encounters suffices to create a justification for the officers’

presence in Gould’s trailer, and it plays a large role in the even-

tual conclusion that this search was reasonable in light of all the

circumstances.

Yet, even assuming the majority correctly assesses the legiti-

37 macy of the “knock and talk” technique, a reasonable officer would

have known, before entering Gould’s bedroom, that the original pur-

pose of the encounter would not be realized that day. At best, from

the officers’ perspective, Gould was not home and was unable to

discuss the allegations made against him. At worst, he was hiding

and did not wish to speak with them.20

As Judge DeMoss rightfully recognizes, slip op. at 7-8 (DeMoss,

J., dissenting), the majority glosses over this error by assessing

the legitimacy of the officers’ purpose and the reasonableness of

their fear at two different points in time. Slip op. at 25, 28-29.

It is true that at one point, the officers were in the mobile home

with a valid purpose: to discuss with Gould the serious allegations

against him. It is equally true that the officers were, at another

point, in the bedroom with a legitimate fear: that Gould was hiding

in a closet and posed a threat to their safety. But there is no

consanguinity between these points. The legitimate purpose of the

encounter had all but evaporated by the time the majority concludes

the officers possessed a valid fear.

The officers had no reason to enter Gould’s bedroom if Gould

was not therein, voluntarily cooperating. An empty room serves no

investigative purpose where the entire focus of the investigation

is on having a conversation. This fact is illustrated by the action

20 The fact that Gould was found hiding in the woods, wearing only his boxer shorts, adequately attests to the fact that the latter of these two possibilities was the more realistic that day. 38 taken by the officers as soon as the room was secure: They left it.

Inasmuch as the sweep served no purpose other than to secure a room

in which the officers had nothing to do, it was unreasonable and in

violation of the Fourth Amendment.

The majority has a rejoinder to that argument: Regardless of

whether the officers should have known that their quest for a

“knock and talk” encounter had been rendered fruitless, they none-

theless possessed a compelling interest in securing the mobile home

so they could safely depart from it. Slip op. at 29-30. I agree

that this is one of two articulated justifications for the sweep in

Buie,21 and, if supported by the record, conceivably could serve to

make the sweep reasonable as well. The record, however, flatly re-

futes that view. Moreover, the majority’s assertion to the contrary

is based in large part on a factual finding that it previously

overturns as being clearly erroneous.

There is no dispute that Cabral lacked even the apparent au-

thority to consent to the entry into Gould’s bedroom. Slip op.

at 22-23. As a result, the sweep must be justified on the basis of

the threats facing the officers at the instant before they entered

that room. Id. That is to say, once the officers observed that

Gould was not in his bedroom (which they could not enter without his

consent, nor had an investigative reason to enter without his

21 See Buie, 494 U.S. at 335-36 (“The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.”). 39 presence), their decision to enter and conduct a sweep is reasonable

only if they would have faced a greater danger by not entering. The

majority appears to conclude that it was not only safer, but

obviously so, for the police to enter the room that potentially

housed a danger, than it was to retreat the few feet toward the

doorway they had used only an instant before.

We are not faced here with Daedalus’s Labyrith or the Minotaur

lurking somewhere inside. The officersSSone of whom already had his

gun drawnSSwere in a fourteen-by-sixty-foot trailer home, and there

is every indication that they had as plain a view of their path to

retreat as they did of the empty bedroom.22 The government has not

even argued, in its briefs, that the officers were unable to depart

safely.

Instead, the government’s posture throughout this case is that

there was no need to flee, because the officers still were conduct-

ing a valid “knock and talk” investigation. As I have shown, and

as the majority tacitly concedes, slip op. at 29, that claim is in-

consistent with the scope of the “knock and talk” technique, which

has, as its central premise, the presence of a voluntarily coop-

erating witness. To compensate for the absence of any investigative

22 Here again, the sparse record inhibits the court’s ability truly to assess whether the sweep was a reasonable alternative to a safe retreat. At en banc oral argument, significant time was devoted to the question whether this was a single-wide or double-wide trailer home, and what effect that might have on the officers ability to leave the scene safely. It is apparent that such questions became relevant only after the court determined that Wilson was not good law, and there should be no great surprise in finding that a district court’s memorandum addressing an entirely different question provides poor fodder on which to graze. 40 purpose to the sweep, the majority instead has adopted the notion

that there was a greater danger in retreating than there was in

sweeping, a claim not supported by the district court’s findings of

fact, to which we ordinarily should defer.

As the majority correctly observes, the officers knew Gould had

a violent past and was alleged to have been making threats against

government officials. But all those facts were known to the

officers before they decided even to enter the house. If that alone

placed them in an unjustified state of danger, that was so as much

at the time they elected to enter the mobile home as when they chose

to sweep. If the majority’s new rule is taken to countenance a

sweep whenever police seek voluntary consent to enter a building

that they already perceive to be intolerably dangerous, Judge DeMoss

is surely correct to assign this investigative technique the new

moniker: “knock, enter, maybe talk, and search.” Slip op. at 6

(DeMoss, J., dissenting).23

Apparently, however, this is not the point the majority is

23 There is no basis for the majority’s conclusion, slip op. at 12, that this situation was inherently dangerous, as the Supreme Court described the in-home arrest in Buie. In Buie, 494 U.S. at 333, the Court recognized the danger an officer faces when forced to effect a con- frontational encounter on his “adversary’s ‘turf.’” Here, although the majority correctly recognizes that a “knock and talk” encounter does not include the potentially explosive confrontation of an arrest, slip op. at 12, it nevertheless concludes that the encounter is dangerous by virtue of being on the adversary’s turf. Id.

This completely mistakes the fact that in a “knock and talk” encounter, there is no adversary. The whole point is to approach a citizen and learn something through voluntary cooperation. 41 attempting to make, for it unambiguously requires officers to justi-

fy the sweep on the basis of evidence that was discovered after they

obtained consent to enter. Slip op. at 23. Nevertheless, though

the majority laudably imposes this limitation on its new rule, the

majority has not faithfully applied that rule to the present record.

The only fact to which the majority points for its explanation

of how the officers went from the point of being safe enough to

enter the room to the point of being threatened enough to justify

a sweep, is the finding that Gould was not in the bedroom where

Cabral said he would be. The most natural inference to draw from

that fact is that Gould was not home, or that if he was home, he

wanted nothing to do with the officers.

Even assuming the reasonableness of the belief that Gould in-

stead was preparing to ambush the officers as they left the

sceneSSsomething he chose not to do when they entered the home, and

was far more likely to do when the officers drew nearer in their

search for himSSthat would pose a threat to the officers only when

they were outside the bedroom, if they also believed Gould was in

possession of a firearm. This is the unambiguous basis on which the

district court determined that “the officers were justified in

viewing the defendants as a danger to their safety,” a statement

that immediately follows the paragraph in which the court states

that the officers knew, before they arrived at the scene, that Gould

had a firearm. But the majority cannot possibly reach the same

42 conclusion, because its opinion also states that the district court

clearly erred when it found that the officers knew about the weapon!

Slip op. at 27 n.13.

As a result, there is no basis in the record for the majority’s

contention that it was more dangerous for the officers to leave the

room instead of entering a confined area that they suspected housed

a threat, and start poking around. That is a theory that was

manufactured out of whole cloth at the en banc oral argument.

If the majority genuinely suspects that this might have been

the case, the best it can do is remand so the record can be de-

veloped with an eye to the correct governing legal standard. As the

court correctly determines today, that standard is not just whether

the sweep was made incident to arrest (as Wilson erroneously led the

district court to believe), but rather whether the sweep was a

reasonably necessary, minimally intrusive means of securing an area

in which the officers needed to perform a task of compelling

importance.

The majority recites, then loses sight of, the well-established

maxim that “physical entry of the home is the chief evilagainst

which the wording of the Fourth Amendment is directed.” Payton v.

New York, 445 U.S. 573, 585 (1980). Because the majority thereby

gives insufficient respect to the constraints of the Fourth

Amendment, I respectfully dissent.

43 DeMoss, Circuit Judge, dissenting, joined by Stewart, Circuit Judge.

Because the majority opinion essentially creates another

exception to the constitutional requirement that nonconsensual

warrantless searches are unreasonable and this newly created

exception is overly broad and unnecessary, I respectfully dissent.

This case presents the difficult issues of: (1) whether the

protective sweep exception defined by the Supreme Court in Maryland

v. Buie, 494 U.S. 325 (1990), is limited to situations involving the

execution of an arrest warrant as we held in United States v.

Wilson, 36 F.3d 1298 (5th Cir. 1994); and if not (2) whether the

search in this case was reasonable. In addressing these two issues,

I think the majority makes three significant errors. First, the

majority’s starting point in its Fourth Amendment analysis

concerning a warrantless search of a home is faulty and therefore

the majority does not fully account for the lack of consent in this

case. Second, the majority’s reliance on the so-called “clearly”

legitimate “knock and talk” police investigatory tactic is misplaced

and therefore the majority’s holding leads to an end-run around the

Fourth Amendment’s protections. Third, the majority has

misconstrued the holding of the Supreme Court in Buie. I will

address these three errors in order.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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. Further, “[i]t is 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. 573, 586 (1980) (citing Coolidge v. New Hampshire,

403 U.S. 443, 477-78 (1971)). Additionally, 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 (1972). Accordingly, our law dictates that

unless some exception applies, the search at issue in this case, a

warrantless nonconsensual search of Kelly Gould’s bedroom in his

home, must be found unconstitutional.

The majority is correct that the Supreme Court has outlined a

“general reasonableness approach” that can be applied in Fourth

Amendment cases and which requires balancing the intrusion on the

protected interests against the promotion of legitimate governmental

interests. See, e.g., United States v. Knights, 534 U.S. 112, 118-

19 (2001). This reasonableness inquiry, however, is to be conducted

within the bedrock legal boundaries outlined above, i.e., a

nonconsensual warrantless search of a home is presumed unreasonable.

Id. at 121 (describing what the Fourth Amendment normally requires).

The inquiry conducted in Knights, that the majority purports to rely

on in this case, is in fact within these legal boundaries because

45 unlike in this case, the defendant in Knights was on probation and

as a term of his probation had consented in writing to unannounced

searches of his home. Id. at 114. The Supreme Court found the

“probation search condition” a “salient circumstance” and thus both

the intrusion on the defendant’s expectation of privacy was less and

the governmental interest was greater, i.e., heightened concerns due

to the fact that probationers are more likely to engage in criminal

conduct, making the search at issue in that case constitutional.

Id. at 118. Therefore, unlike in this case, where there is no

probation and no general consent agreement, the Supreme Court’s

reasonableness inquiry in Knights is well within established Fourth

Amendment jurisprudence.

Unfortunately, the majority opinion skips some significant

concerns in this case and does not address the established legal

principles I have already outlined. The majority’s inquiry starts

by giving too little credence to Gould’s privacy interest and the

intrusion of the officers coming into his house late in the evening

to look for him when they had no factual basis whatsoever for

assuming he would be agreeable to talking to them or that he was

even present. When a search is performed pursuant to consent, the

government has the burden of proving that the individual who gave

consent had the authority to do so and that the search was conducted

within the scope of that consent. United States v. Ibarra, 965 F.2d

1354, 1356 n.2 (5th Cir. 1992) (en banc). “The standard for

46 measuring the scope of a suspect’s consent under the Fourth

Amendment is that of ‘objective’ reasonableness--what would the

typical reasonable person have understood by the exchange between

the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251

(1991). The majority opinion emphasizes that the officers were

legitimately in the home. The record, however, is clear that the

officers did not have consent to enter Gould’s bedroom. Even

resolving all factual disputes and making all credibility

determinations in favor of the government, the testimony at the

suppression hearing indicated that Cabral thought Gould was either

in the backyard working out or in his (Gould’s) bedroom. As

officers went back to the bedroom they may have thought Gould was

possibly there but they testified that he did not appear to be

present and they understood that they never had consent to enter the

bedroom. The legitimacy of the officers’ presence, if legitimate

at all, ended at the threshold to the bedroom door.24 The majority

seems to wash over this concern by not fully addressing the issue

and instead references the very distinguishable Knights holding.

24 The majority indicates that the protective sweep allowed the officers to go into an area that they did not have consent to enter, i.e., the bedroom. Consent is an issue concerning the officers’ legitimacy to be on the premises and where this legitimacy begins and ends is a significant issue which the majority discusses in a contradictory fashion. For instance, if the officers had consent, they certainly exceeded the scope of the consent when they entered the bedroom. On the other hand, if the protective sweep exception allows the officers to enter the bedroom then the original consent validating their presence in the residence certainly did not understand this to be within the scope of the consent and therefore the consent was invalid and the officers’ presence was not legitimate in the first place. Under the majority’s view there is no way to resolve the issues regarding consent.

47 This case, however, is different than Knights because here the

consent did not extend to the entire residence. If the majority

believes the search was based on consent then that should be the

holding, rather than creating an additional unnecessary and overly

broad exception to the warrant requirement.25 In summary, because

the majority starts from the wrong place, it ends in the wrong place

and hence its Fourth Amendment analysis is flawed.

II.

In satisfying its first requirement of this newly created

exception to the protections afforded by the Fourth Amendment, i.e.,

that the officers were legally present in the mobile home, the

majority relies on the “knock and talk” police investigatory tactic

mentioned in United States v. Jones, 239 F.3d 716, 720 (5th Cir.

2001). The majority refers to this practice as being “clearly . .

. recognized as legitimate.” The “knock and talk” tactic is hardly

well-established law.26 The Fifth Circuit case establishing the

25 Of course, such a holding would be contrary to the district court’s finding that Cabral did not have authority to consent to the search of Gould’s bedroom and after all, it is Gould’s privacy interest that is at stake in this case. 26 There are two aspects of Jones which make it a very weak decision upon which to posit a new exception to the Fourth Amendment. First the gun in Jones was lying in plain view on a kitchen table visible to the police officer standing outside the screen door of the entrance to the apartment. Id. at 719. The district court in Jones found that this hand gun in plain view was an “exigent circumstance,” justifying the officer’s entry into the apartment without a warrant. Id. at 720. No such circumstance exists here in Gould. Secondly, it is noteworthy that Jones has never been discussed or cited by the Supreme Court. Several other circuits have cited Jones but only the Sixth Circuit has really examined the Jones case and indicated some agreement with the Fifth Circuit’s “knock and talk” concept. United States v. Carter, 315 F.3d 651, *4 n.6 (6th Cir. 2003) (continued...)

48 concept of “knock and talk” merely states that “[t]his investigative

tactic is not inherently unreasonable.” Jones, 239 F.3d at 720.

Use of the “knock and talk” tactic may be reasonable in some

cases, e.g., police may follow-up on a lead and approach a citizen,

seeking the citizen’s cooperation. In this case, however, the

officers conducted an intrusive search of a bedroom with neither

consent, nor search warrant, nor arrest warrant, nor any exigent

circumstances. The majority has created an exception that permits

an officer to ask for permission to enter a home from a third party

who may have authority to consent to only part of the home but not

all of the home and then immediately contend that he, the officer,

is so apprehensive about his own safety that he must conduct a

protective sweep of areas where he has no consent to be, when the

officer had no obligation or duty to enter the home in the first

place. This new exception is really a “knock, enter, maybe talk,

and search” police investigatory tactic, all conducted without a

warrant, and resulting in an end-run around the protections afforded

by the Fourth Amendment.

In addition, the majority has not stated why their new

exception is necessary or why we should not find that the officers

created a situation that resulted in a Fourth Amendment violation

when they in fact had many other permissible ways to pursue their

26 (...continued) (vacated for rehearing en banc). This Sixth Circuit opinion, however, has now been vacated because the case was heard en banc, but there is presently no subsequent opinion available.

49 investigation, i.e., seeking a search warrant based on the

informant’s tip. The majority does address the issue of exigent

circumstances that can sometimes make a warrantless search

permissible. This search, however, as the majority agrees, is not

based on any exigency. In fact, as the district court noted the

officers “could have approached the defendant as he left his mobile

home one day, or they could have followed him and approached him in

any other public place without necessitating the entry into his

residence.” Just as there was no consent, there was no exigent

circumstance to support this search.

Recognizing that the officers cannot create the exigency, we

evaluate the reasonableness of the officers’ conduct not at the

point of the search but prior to the point when the encounter

escalates making a search necessary or a foregone conclusion.

United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir. 1986).

Therefore, in this case, the officers’ conduct is not evaluated at

the point when they are searching for Gould because according to the

government the officers are concerned that Gould might ambush them.

Instead the reasonableness of the conduct is evaluated at the point

in time when the officers call for Gould and he does not answer

because according to the officers’ testimony he does not appear to

be in his room. United States v. Gould, 326 F.3d 651, 652 (5th Cir.

2003). At that point in time, it is more reasonable to assume Gould

is either not present or if present does not wish to talk to the

50 officers, than that Gould is about to unleash some surprise attack

on the officers. Likewise, it is unreasonable for the officers,

under no duty to execute an arrest warrant and not having consent,

to go into Gould’s bedroom to seek him out. The officers had no

duty to persist, and in fact the officers had no authority to

persist, in their search for Gould.

Of course, the government does not argue that the officers were

searching for Gould wishing to talk to him because such a search is

not within the protective sweep exception. Rather the government

argues the officers were afraid Gould would attack them. This

argument is contrary to the undisputed facts in the record that

indicate Gould was at best avoiding the officers and at worst

unaware of the officers because he was in the backyard. And

although the officers knew of Gould’s violent past, there is nothing

in the record to establish that Gould would be waiting for the

officers in order to ambush them. Because the officers could not

obtain the cooperation of Gould or because Gould actually was not

present, the officers’ use of the “knock and talk” tactic, by

definition, was unsuccessful and therefore the officers should have

pursued their investigation by other means and not by an illegal

search.

The majority is worried that affirming the district court’s

decision to grant the motion to suppress will mean that law officers

cannot use the “knock and talk” tactic if they are apprehensive of

being ambushed. But voluntary engagement with law officers and not

51 an ambush situation is precisely what the “knock and talk” tactic

requires and to define the tactic as broadly as the majority has is

essentially to do away with the warrant requirement. In other

words, in some situations, such as this case, the “knock and talk”

tactic progressed as far as lawful when Gould was non-responsive or

not present. At that point, the officers should have pursued other

means to continue their investigation–-that is what the Fourth

Amendment requires. The majority’s opinion is an unreasonable

extension of the “knock and talk” tactic and does not fully account

for the well-established Fourth Amendment principle that a

warrantless nonconsensual search of a home is presumed unreasonable

and in this case there was no exigency and nothing necessitating the

intrusion into Gould’s bedroom.

III.

We decided to review en banc the Gould case to determine:

(1) whether the rule established in Wilson that a protective sweep

of a home was limited to an arrest situation, as defined by the

Supreme Court in Buie, was correct; and (2) if the protective sweep

exception to the search warrant requirement is not limited as Wilson

and Buie indicate, whether the warrantless search of Gould’s bedroom

was reasonable.

The majority characterizes the rule outlined in Wilson as a

“bright-line” rule; Wilson, however, directly follows the precise

language used by the Supreme Court in its definition of the

52 protective sweep exception in Buie. See Wilson, 36 F.3d at 1305-06.

The protective sweep exception as outlined in Buie requires the

following three elements. First, the officers must be executing an

arrest warrant in a suspect’s home. See generally Buie, 494 U.S.

325 (mentioning over 65 times the concept of arrest in a home when

defining a protective sweep). Second, the officers must perceive

some danger from another person or persons. Id. at 332-36

(indicating that not every in-home arrest will justify a protective

sweep and listing several factors that are used to validate the

reasonableness of the perceived danger, such as the nature of the

crime for which the arrest is being executed, the likely presence

of cohorts, and the time and place of arrest). Third, the search

may only be a quick and limited cursory inspection of those places

another person might be hiding. Id. at 335-36. Here, the majority

has ignored the first two elements and only addressed the third.27

Of course, there is good reason for the limited definition as

outlined in Buie and tracked by this Court in Wilson. Such a

27 The Supreme Court has never expanded the concept of the protective sweep from its original limited definition in Buie. In fact, there are only three Supreme Court cases even citing Buie, none of which include a discussion of the contours of the protective sweep. See Richards v. Wisconsin, 520 U.S. 385, 394 (1997); United States v. James Daniel Good Real Property, 510 U.S. 43, 67 (1993); Horton v. California, 496 U.S. 128, 140 (1990). The only slightly relevant citation occurred in Richards where the Supreme Court addressed the appropriate balance between legitimate law enforcement concerns at issue in the execution of search warrants and individual privacy interests affected by no-knock entries. 520 U.S. at 394. The Richards Court cited Buie for its allowance of “a protective sweep of a house during an arrest where the officers have ‘a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.’” Id. (citing Buie, 494 U.S. at 337) (emphasis added).

53 definition avoids the quagmire that the majority finds itself in

after rejecting the language in Buie and Wilson. The majority is

forced to fashion a new exception with alternative elements that are

vague; and as such the new exception swallows the rule that a

warrant is generally required for an in-home search. After

fashioning a new exception the majority is then forced to apply its

vague standards and determine if the search at issue here was

reasonable. Because the district court did not address the

reasonableness of the search, it would seem more appropriate to me

for this Court to remand the case for a more detailed inquiry into

the complicated and extremely fact specific issue of reasonableness.

See Buie, 494 U.S. at 337 (noting that remand was required to

determine if the protective sweep, although conducted in the context

of the execution of an arrest warrant, was based on a reasonably

perceived threat of danger from an additional person and was a

limited cursory inspection as defined by the Supreme Court). Remand

to address this complicated inquiry, however, would not be necessary

if the holding of Buie is followed.

First, the element that the officers must be executing an

arrest warrant in a home in order to conduct a protective sweep

cannot be so easily disposed of and an alternative substituted for

it. As the Buie court noted:

The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on- the-street or roadside investigatory encounter. . . . A protective sweep . . . occurs as an adjunct to the

54 serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s “turf.”

494 U.S. at 333; see also Knowles v. Iowa, 525 U.S. 113, 117 (1998)

(finding that the danger to the officers “flows from the fact of the

arrest, and its attendant proximity, stress, and uncertainty”). In

place of this element the majority substitutes the following

element: the police presence in the home must be for a legitimate

law enforcement purpose. The majority’s element is an inadequate

substitution. There are many legitimate law enforcement purposes

that may permit officers to do something short of conducting a

warrantless search, e.g., enter a home for the purpose of talking

to the person who gave the officers consent and had authority to

consent to the entry. Such a legitimate purpose does not somehow

give the officer carte blanche to then search the house.28 In the

protective sweep situation, as defined by Buie, the officers must

have more than a legitimate purpose to be in the home, the officers

must have a compelling reason, i.e., be in the house under the

obligation to execute an arrest warrant. This requirement is, in

fact, the essence of the Buie holding and this requirement is a

limiting factor on the officers’ conduct that is missing from the

majority’s opinion.

28 See the discussion of the problems with the majority’s analysis of consent in section I of this dissent.

55 Second, Buie is not about fear of the person to be arrested.

494 U.S. at 328 (noting that Buie was already arrested when the

protective sweep was conducted). Such a fear or concern for officer

safety is already sufficiently protected by allowing the officers

to actually execute the arrest warrant and search for the person

subject to the arrest if necessary. See, e.g., Chimel v.

California, 395 U.S. 752, 763 (1969) (addressing both the threat

posed by the arrestee and the scope of a search incident to an

arrest). Buie is about a reasonable, articulable suspicion “that

the area to be swept harbors an individual posing a danger to those

on the arrest scene.” Buie, 494 U.S. at 337. Here, there is no

such fear, and the majority opinion allows the officers to do

something they normally would need a warrant to do, search a

residence which they do not have consent to search and where the

resident is either not present or not interested in talking to them.

Again, the majority’s neglect of this requirement leads to an overly

broad new exception to the Fourth Amendment.

The majority opinion mentions two temporal limitations on the

protective sweep that were articulated in Buie. These limitations

are: that the protective sweep “last[] no longer than is necessary

to dispel the reasonable suspicion of danger and in any event no

longer than it takes to complete the arrest and depart the

premises.” Buie, 494 U.S. at 335-36. The majority, changing the

language of these limitations slightly, neglects the fact that these

56 limitations depend on the arrest and the officers search for someone

other than the arrestee and therefore apart from these requirements

the limitations are hollow and void of any objective criteria, i.e.,

the duration of the arrest, by which to evaluate the officers’

conduct. Under the majority’s view these limitations are

meaningless and this again points out the vagueness of the majority

holding in this case.

Finally, in my view this case should have never been prosecuted

in federal court. The original criminal conduct which precipitated

the arrest was strictly local in nature: one Louisiana resident

(Forehand) reported to the sheriff of one Louisiana parish (and not

to the FBI, the DEA, the ATF, or the U.S. Marshall Service) that

another Louisiana resident (Gould) had made oral threats to kill two

Louisiana judges (not federal judges) and some other Louisiana

residents (not residents of another state) apparently because of a

proceeding of some sort in a Louisiana court (not a federal court)

relating to a state law claim (not a federal question). If the

admonitions in United States v. Lopez, 514 U.S. 549 (1995) and

United States v. Morrison, 529 U.S. 598 (2000) about drawing a line

between local and national interests have any meaning at all, then

this criminal investigation would have undoubtedly fallen on the

local side of the line. All of the law enforcement actors in this

case were state officers.

Furthermore, I think it would be ridiculous to conclude that

57 the firearms found as a result of a warrantless search in Gould’s

closets in Gould’s bedroom in Gould’s trailer home in the woods of

rural Louisiana had any effect whatsoever, much less a substantial

effect, on interstate commerce as Lopez and Morrison require for a

federal prosecution. Lopez, 514 U.S. at 562-63; Morrison, 529 U.S.

at 608-09.

The events which precipitated this case occurred on October 17,

2000. The federal indictment in this case was not handed down until

August 9, 2001, more than 9 months later, which clearly indicates

that the federal indictment was an afterthought. To better

understand this anomaly and what actually happened during this

period, I have prepared from the record a factual chronology of the

events in this time frame which is attached as Exhibit A to this

dissent.

From the chronology in Exhibit A, I would suggest that the

following conclusions should be readily drawn:

A. The dismissal on March 5, 2001, of the state solicitation for murder charge for “no probable cause” pulls the rug out from under the government’s assertion that Gould’s “threats to kill” were sufficiently real and immediate to justify talking with him even without any warrant; and

B. The decision of the state court on July 25, 2001, to grant Gould’s motion to suppress pulls the rug out from under the subsequent federal indictment based on identical facts; and should have been disclosed to the federal district court addressing the federal suppression hearing. Had it been, the federal district court might well have based its decision on the alternate ground that the state had already ruled the seizure of the firearms was

58 unconstitutional.

In summary, the Fourth Amendment is the keystone that holds up

the arch of our Bill of Rights which in turn is the unique

contribution of our founding fathers to our system of government

which has now survived longer than any other representative

government in the world. In his famous dissent in Olmstead v.

United States, Justice Brandeis called privacy-which he defined as:

”the right to be let alone”-“the most comprehensive of rights and

the right most valued by civilized men.” 277 U.S. 438, 478

(1928)(Brandeis, J., dissenting). Justice Brandeis argued that the

framers knew that Americans wanted protection from governmental

intrusion not only for their property, but also for their thoughts,

ideas and emotions. Take away the Fourth Amendment and the right

of privacy disappears.

The deputy sheriffs here in Gould made no attempt to develop

a sworn affidavit in writing from the purported informant,

Forehand,29 and they therefore made no attempt to get either a

search warrant or an arrest warrant from an independent third party

magistrate on the basis of probable cause. I have no doubt that the

29 After giving oral reports over the telephone to the deputy sheriffs about Gould and after being present at Gould’s trailer house on the night of Gould’s arrest, Forehand disappears from the investigation and processing of this trial. Forehand never gave a written statement to the deputy sheriffs and did not testify for the government at the suppression hearing so the government’s case as to the need for the police to interview Gould (i.e., Gould’s threats to kill state judges) is based entirely on the hearsay testimony of the deputy sheriffs. There is nothing in this record that demonstrates the reliability or credibility of Forehand as a previous informant of the sheriff’s department.

59 deputy sheriffs believed that they were acting reasonably and with

good intentions. But the old adage warns us that “the road to hell

is paved with good intentions.” In my judgment, that is precisely

where the majority opinion wants to put us-by unhooking the

“protective sweep” from its connection with the execution of an

arrest warrant in a home, which is where the Supreme Court framed

the concept. In my view the gambit of getting permission to enter

a citizen’s home in order to talk to someone and then conducting a

protective sweep search under the guise of sensing danger to the

investigating officer will effectively eliminate the need for

complying with the Fourth Amendment and at that point we will all

be, literally and figuratively, on the road to hell.

The majority opinion creates a new exception to the Fourth

Amendment that is overly broad and unnecessary. The district

court’s granting of the motion to suppress in this case should be

affirmed. For these reasons, I respectfully dissent.

60 EXHIBIT A CHRONOLOGY

1. On October 17, 2000, the Livingston Parish Sheriff’s Officers

on the scene arrested Gould and charged him with the state

crime of possession of a firearm by a convicted felon. See LA.

Rev. Stat. Ann. § 14:95.1 (West 2004), in Cause No. 15571, 21st

Judicial District Court, Livingston Parish.

2. On October 18, 2000, an arrest warrant was issued out of the

East Baton Rouge Parish charging Gould with Solicitation for

Murder. See LA. Rev. Stat. Ann. § 14:28.1 (West 2004).

3. Gould was in the custody of the East Baton Rouge Parish from

October 18, 2000, until March 5, 2001, when no probable cause

was found for the Solicitation for Murder charge.

4. On March 5, 2001, Gould was returned to the custody of the

Livingston Parish on the felon in possession charge.

5. On May 31, 2001, Gould filed a motion to suppress evidence

obtained without a warrant in Cause No. 15571 in the 21st

Judicial District Court of Louisiana. Gould’s motion was based

on his argument that all physical evidence and any statements

to be used against him were obtained without a search warrant

and without his consent. An evidentiary hearing was held on

Gould’s motion to suppress on July 25, 2001, at which one of

61 EXHIBIT A CHRONOLOGY the officers who arrested Gould on October 17, 2000, testified.

At the end of this hearing the state judge granted Gould’s

motion and bond was set and the case was continued until

September 19, 2001. No. 15571, Louisiana v. Kelly Gould.

6. Also on July 25, 2001, a federal criminal complaint was filed

in the United States District Court for the Middle District of

Louisiana charging Gould with being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). The person who

swore out the affidavit was an agent of B.A.T.F. not one of the

deputy sheriffs that was present on October 17, 2000, at

Gould’s arrest. This affiant was apparently unaware of the

fact that the state complaint on the solicitation for murder

charge had been dismissed and the fact that the state felon in

possession charge had been put on hold after the granting of

Gould’s motion to suppress since he made no mention of those

proceedings.

7. Gould made his state bond on July 26, 2001, and was released

from state custody.

8. On August 9, 2001, Gould was indicted by a federal grand jury

on the federal gun charge.

62 EXHIBIT A CHRONOLOGY

9. On August 17, 2001, there was a federal detention hearing and

following the hearing Gould was ordered detained on the federal

charges.

10. On September 19, 2001, the 21st Judicial District Court of

Louisiana continued the state case against Gould subject to

reassignment to another judge.

11. On December 19, 2001, the federal district court held a hearing

concerning Gould’s motion to suppress. At this hearing there

was testimony from the following local law officers: Detective

Jim Brown who was in charge of the case for the Livingston

Parish Sheriff’s Office testified; his partner the night of the

visit to Gould’s trailer, Officer Jason Ard testified; and

Lieutenant Carl Krester, who had been assigned the case from

the East Baton Rouge Sheriff’s Office and was also present at

Gould’s trailer, testified for the government. Dennis Cabral

who worked with and lived with Gould and was present the night

of the search testified for the defense. The B.A.T.F. agent

who swore out the federal complaint on July 25, 2001, did not

testify. Likewise, Forehand did not testify.

12. On April 2, 2002, the federal district court granted Gould’s

federal motion to suppress.

63 EXHIBIT A CHRONOLOGY 13. After granting the motion to suppress the federal district

court continued the trial date indefinitely pending the

government’s appeal of the granting of the motion to suppress.

14. Gould’s motion to be released on bond pending appeal was denied

on June 3, 2002, and according to the record Gould has remained

in federal custody.

64 EXHIBIT A CHRONOLOGY