United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 5, 2004
Charles R. Fulbruge III
Clerk
No. 03-41577
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STANLEY NEELY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CR-343-1
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Following the denial of his motion to suppress and ensuing
bench trial, Stanley Neely was convicted of being a felon in
possession of a firearm and possession of an unregistered
firearm. Neely has appealed. He contends that evidence seized
after a protective sweep of the house at which he was arrested
should have been suppressed.
“In reviewing a ruling on a motion to suppress, this court
reviews questions of law de novo and factual findings for clear
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-41577
-2-
error.” United States v. Jordan, 232 F.3d 447, 448 (5th Cir.
2000). We view the evidence in the light most favorable to the
prevailing party. Id. Where a police officer acts without a
warrant, the Government bears the burden of proving that the
search was valid. United States v. Castro, 166 F.3d 728, 733 n.6
(5th Cir. 1999) (en banc).
“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. It is narrowly confined to
a cursory visual inspection of those places in which a person
might be hiding.” Maryland v. Buie, 494 U.S. 325, 327 (1990).
A “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.” United States v. Gould, 364 F.3d 578,
587 (5th Cir. 2004) (en banc). “[T]he protective sweep must be
supported ‘by a reasonable, articulable suspicion’ . . . ‘that
the area to be swept harbors an individual posing a danger to’
those on the scene.” Id. at 587 (quoting Buie, 494 U.S. at
336–37; internal citation omitted).
Neely argues that the officers could not lawfully enter the
house because he was arrested outside of the house. “A
protective sweep of a suspect’s house may be made ‘even if the
arrest is made near the door but outside the lodging’ if the
arresting officers ‘have reasonable grounds to believe that there
are other persons present inside who might present a security
No. 03-41577
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risk.’” United States v. Watson, 273 F.3d 599, 603 (5th Cir.
2001)(quoting United States v. Merritt,882 F.2d 916, 921 (5th
Cir. 1989)). The district court’s finding that Smith articulated
a reasonable basis for conducting a protective sweep of the house
was not clearly erroneous. See id.; see also United States v.
Wilson, 306 F.3d 231, 234, 237–39 (5th Cir. 2002).
Neely contends also that the scope of the search was too
broad and that it was not reasonable to search the entire house.
The arresting officer’s testimony reflects that the scope of the
search was limited to “places in which a person might be hiding.”
Buie, 494 U.S. at 327. The judgment is
AFFIRMED.