Tenth Affirms that Buie Sweep Must Be Incident to Arrest, But Nonetheless Upholds Denial of Suppression Motion
U.S. v. Torres-Castro,--- F.3d ----, 2006 WL 3598365 (10th Cir. December 12, 2006)
Despite the ultimate non-defendant-friendly result, the defense held the Tenth, for the time being, to requiring that a Buie sweep be incident to an arrest.
During a knock and talk (police were investigating a report by Defendant’s under-aged girlfriend that he had beaten her and had a gun that he would use if anyone tried to take her away from him), officers entered Defendant’s home, where others were present, conducted a sweep, found incriminating bullets during the sweep and after confronting Defendant with the bullets, got him to tell them where his gun was hidden. They then arrested him. Defendant moved to suppress the evidence, and the district court denied the motion.
The 10th held, first, that absent an en banc decision to the contrary, they could not reverse 10th precedent requiring Maryland v. Buie protective sweeps to be incident to arrest, thus leaving the 10th in the minority among circuits who have decided the issue. The sweep in this case, therefore, was in violation of the 4th amendment. The 10th stated, however, that protective sweeps can precede the arrest so long as they are incident to the arrest (as in auto searches, they said, which feeds my paranoia that courts will turn homes into cars in spite of no wheels) but stated it did not need to determine whether this sweep was incident to the arrest since it was denying D’s appeal on other grounds.
In a pretty fact bound opinion, the 10th held that Defendant, who claimed his consent was fruit of the 4th Amendment violation, did not show a factual nexus between the illegal sweep and discovery of the gun. There was a nexus between the sweep and the discovery of the bullets, but they would have been inevitably discovered and not subject to suppression. (Herein lies some of the disingenuity of the opinion). Therefore, police had an independent reason, not discovery of the bullets, to ask Defendant about the shotgun–the reason was the reports from the under-aged girlfriend. (And the bullets would have been inevitably discovered during the search for the shotgun). (Police may have had reason to ask about the gun but, sans confrontation with the bullets, Defendant had no reason to answer).
Despite the ultimate non-defendant-friendly result, the defense held the Tenth, for the time being, to requiring that a Buie sweep be incident to an arrest.
During a knock and talk (police were investigating a report by Defendant’s under-aged girlfriend that he had beaten her and had a gun that he would use if anyone tried to take her away from him), officers entered Defendant’s home, where others were present, conducted a sweep, found incriminating bullets during the sweep and after confronting Defendant with the bullets, got him to tell them where his gun was hidden. They then arrested him. Defendant moved to suppress the evidence, and the district court denied the motion.
The 10th held, first, that absent an en banc decision to the contrary, they could not reverse 10th precedent requiring Maryland v. Buie protective sweeps to be incident to arrest, thus leaving the 10th in the minority among circuits who have decided the issue. The sweep in this case, therefore, was in violation of the 4th amendment. The 10th stated, however, that protective sweeps can precede the arrest so long as they are incident to the arrest (as in auto searches, they said, which feeds my paranoia that courts will turn homes into cars in spite of no wheels) but stated it did not need to determine whether this sweep was incident to the arrest since it was denying D’s appeal on other grounds.
In a pretty fact bound opinion, the 10th held that Defendant, who claimed his consent was fruit of the 4th Amendment violation, did not show a factual nexus between the illegal sweep and discovery of the gun. There was a nexus between the sweep and the discovery of the bullets, but they would have been inevitably discovered and not subject to suppression. (Herein lies some of the disingenuity of the opinion). Therefore, police had an independent reason, not discovery of the bullets, to ask Defendant about the shotgun–the reason was the reports from the under-aged girlfriend. (And the bullets would have been inevitably discovered during the search for the shotgun). (Police may have had reason to ask about the gun but, sans confrontation with the bullets, Defendant had no reason to answer).
posted by Anonymous at 9:53 AM
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