Monday, August 21, 2017

Mere Possibility Someone Else Might Be Present Does Not Justify A Protective Sweep of Residence

US v. Nelson, --- F.3d ---, 2017 WL 3526570 (10th Cir. August 17, 2017): Almost a win for the defendant. The Tenth Circuit reverses the district court's denial of the defendant's motion to suppress. Defendant was visiting his girlfriend at her parents' house when the girlfriend's father called deputies to tell them defendant was there, as the deputies had previously asked the father to do so. When the father called, he told the officers defendant was at the residence and the marshals could "go inside and search" for defendant. When the officers arrived, the girlfriend answered the door. She said defendant was upstairs and she would get him, and then tried to shut the door. One deputy stopped her from doing so, and they entered the residence, which had four levels. As it happened, the defendant was not upstairs, but in the subbasement. One deputy saw movement there and told the unidentified person to come out. Defendant came out and was taken into custody on the next level. A deputy then went to the subbasement and searched it, where he found two guns under a pile of clothes on a bed. The girlfriend and her parents all denied ownership of the guns, so defendant was charged with felon in possession of them. Defendant moved to suppress the guns, on the grounds that the Fourth Amendment was violated because the deputies continued to search the residence after arresting him. The government made two arguments in response: 1) The owner of the house, the girlfriend's father, consented to the search, and 2) the search was a lawful protective sweep under Maryland v. Buie, 494 U.S. 325 (1990). The district court bought the second argument , reasoning that the facts surrounding Nelson's arrest supported a reasonable belief that someone else was in the home who might pose a danger. The district court didn't address the first argument.

On appeal, the 10th Circuit holds that the search was not a lawful protective sweep. The facts relied on by the district court -- that the girlfriend attempted to shut the door on the deputies, that she incorrectly told the deputies defendant was upstairs when he was actually downstairs, and that defendant failed to immediately show himself -- "don't create an inference that someone other than [defendant] was hiding in the house, whether ... taken separately or together." The Court noted that the government did not try to explain how the facts created the necessary inference, instead arguing that the deputies had no way of knowing if anyone else was there. But that isn't enough, the Court says. There might always be somebody else present. That mere possibility does not justify a protective sweep.

The government pointed to two additional facts, but the Court was not impressed. The Court rejects the government's attempt to rely on the finding that one deputy "noticed shadows moving at the bottom of the stairs" in the subbasement because the government did not explain the significance of this putative fact. The government also pointed to the girlfriend's statement that her cousin was also in the house. The Court says that is the type of information that might support the search. Unfortunately, the government conceded the deputy didn't learn about this fact until after the search, and thus it can't justify the search.

The government also made two more arguments to support the search. First, the government contended that the search was appropriate because, under Buie, officers could look into areas immediately adjoining the place of arrest from which an attack could be launched., The panel is not impressed because the government did not make this specific argument below. Moreover, even though the Court can affirm on alternative grounds, here the record is insufficiently developed to allow it to do so. For the same reasons, the Court declines to consider the government's argument based on the good faith exception to the exclusionary rule.

However, the defendant is not home free. The Court remands the case to the district court to determine the scope of the father's consent to enter and search the house.

Interestingly, in footnote 5, the panel noted testimony at the hearing that the Marshals had a "blanket safety rule" that whenever they entered a residence to make an arrest, they would "check everywhere that a body could be." The Court was somewhat disturbed by this, saying: "We note that if, as Nelson suggests, the United States Marshals Service for the District of Kansas maintains a practice that systemically ignores the framework set forth in Buie, such a practice would be troubling."