Case: 21-30450 Document: 00516397995 Page: 1 Date Filed: 07/18/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 18, 2022
No. 21-30450 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Eugene Thurman,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:19-CR-398-1
Before Jones, Stewart, and Duncan, Circuit Judges.
Per Curiam:*
Eugene Thurman argues that the district court erred by 1) denying his
motion to suppress based on the protective-sweep exception to the Fourth
Amendment and the independent-source exception to the exclusionary rule,
and 2) miscalculating his base offense level. We AFFIRM the judgment.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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I. BACKGROUND
The Monroe, Louisiana Police Department (“MPD”) received a call
on May 11, 2019 that someone with a “an AR rifle, or AR styled rifle, [or]
long gun” was firing rounds outside the Parkview Apartments. That
complex is located in an extremely high-crime area. Officers could not find
the shooter or the weapon, but they found 17 spent .223 caliber rifle rounds
in the parking lot and heard 15 shots while there.
Two days later, MPD received an anonymous tip that “Eugene
Thurman [was] a felon . . . in possession of an assault rifle.” The tipster
further conveyed that Thurman was a 44-year-old black male who “live[d]
[in unit 74] at Parkview Apartments with his girlfriend and her two children
[and that he was] known to carry the weapon in a red bag with him.” The tip
did not provide enough evidence to obtain a search warrant, but officers
determined that Thurman’s was “a known felon[]” with a lengthy criminal
history.
With that knowledge, Lieutenant Triche Passman, Corporal James
Schmitz, Detective Doug Lambert, and Detective Snowberger, along with at
least two other officers, went to the Parkview Apartments later on May 13th
to conduct a “knock and talk.” Upon arriving, they found three children
playing outside unit 74, and one said that Thurman was inside with
“somebody” before going to retrieve him. Thurman emerged about 20
seconds later and stood right outside of the unit with the door still ajar.
Lambert detected an odor of marijuana wafting from the apartment. The
encounter was recorded on police bodycams. For seven to eight minutes,
police spoke to Thurman outside the apartment. During that time, a child
entered the unit and then exited along with a woman. Thurman nervously
denied possessing a gun. Although he denied that it was “his” apartment,
Thurman admitted he “frequented” it. Thurman gave police the lessee’s
2
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name, and they attempted, without success, to contact her for permission to
search the apartment. Thurman refused to approve a warrantless search.
Alarmed by Thurman’s nervousness, evasive answers, and the
possibility that others remained in the apartment, Passman announced that
he was going to “clear the unit” 1 and Lambert told him to “[m]ake sure there
[was] nobody else in there.” Passman and Snowberger then entered the unit
with their guns drawn and the former yelled “Monroe Police, anybody else
in here?” Lambert and Schmitz remained outside. Within 30 seconds
Passman observed “an AK-47 assault rifle propped up against a wall in the
far corner of the back bedroom, a baggie of marijuana on the night table, and
digital scales.” 2 He then emerged from the hallway and instructed the
officers outside to handcuff Thurman.
Passman and Snowberger returned to the doorway, but they had not
yet determined that no one else was inside, so Lambert followed them to
conduct a secondary sweep. Passman re-drew his sidearm and, within
approximately 30 seconds, the officers searched the bathroom and both
bedrooms. All three officers then exited the unit. The initial and secondary
protective sweeps lasted only approximately one minute combined.
Lambert submitted a search warrant application that “requested to
enter 1101 Richwood Road 2 Apt. 74 to collect any and all illegal drugs and
weapons found inside the residence.” The application stated, in relevant
1
Passman was also prompted to conduct the sweep based on Thurman’s alleged
possession of a gun, especially in light of the prior shootings at the complex. He was
unaware of the marijuana odor at that time.
2
Though that was “not the gun [they] were looking for[,]” Passman determined
at that point that there was sufficient ground to seek a search warrant because the gun they
were seeking could have been somewhere else. Thurman later uses that to link the sweeps
with the warrant. Yet, as explained below, Passman was not involved with obtaining the
later-issued search warrant.
3
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part, that “a protective sweep of the apartment was performed[]” “[d]ue to
the chance of someone else being in the apartment and them being armed
with a rifle[.]” But it only dedicated one sentence to describing what officers
saw inside. The application further explained that officers had been unable
to contact the lessee. And it critically maintained that “an odor of marijuana
was detected coming from the apartment.” A state court judge signed the
warrant that same afternoon. The search commenced shortly afterward and
lasted only 20 minutes. Officers recovered: a sandwich bag containing
suspected marijuana, a digital scale, Thurman’s ID card, an AK-47 Century
International Model M70 AB2, 3 an AK-47 magazine containing 11 7.62 X 39
rounds, an empty Glock 40 magazine, and a brown leather case containing
several 30-06 rounds.
A grand jury indicted Thurman in December 2019 as a felon
possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Thurman pled not
guilty and later moved to suppress all of the seized items. The magistrate
judge held a hearing that featured 32 exhibits along with testimony from
Passman, Schmitz, and Lambert. The magistrate judge recommended
denying the motion. In doing so, she determined that the protective sweeps
were invalid but that officers would have obtained a warrant anyway based on
the independent-source exception to the exclusionary rule. Both parties filed
objections. The district court adopted most of the magistrate judge’s
findings but denied suppression because the protective sweeps were
constitutionally valid. Thurman entered a conditional guilty plea while
reserving the right to appeal the denial of his motion to suppress.
3
The AK-47 was manufactured in Minnesota and therefore traveled in interstate
commerce to reach Louisiana. A weapons trace later verified that the firearm had been
stolen during a December 2018 residential burglary in Baton Rouge.
4
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The Presentence Investigation Report (“PSR”) assessed a base
offense level of 26 pursuant to United States Sentencing Guidelines
(“USSG”) § 2K2.1(a)(1) because Thurman had two prior felony convictions
for controlled substance offenses. With a total offense level of 26 and a
criminal history category of V, 4 Thurman faced 100 to 125 months of
imprisonment under the guidelines, but the statutory maximum was 10 years.
Thurman objected, arguing that his drug conspiracy conviction was not a
controlled substance offense. The court overruled the objection at
sentencing and adopted the PSR. The court then sentenced Thurman to 120
months of imprisonment and three years of supervised release. Thurman
timely appealed.
II. DISCUSSION
“When reviewing a denial of a motion to suppress evidence, [this
court] review[s] the district court’s factual findings for clear error and its
legal conclusions, including the ultimate constitutionality of the actions of
law enforcement, de novo.” United States v. Meals, 21 F.4th 903, 906 (5th Cir.
2021) (citation omitted) (alterations in original). Findings of sufficient
danger justifying a protective sweep are, for example, reviewed for clear
error. United States v. Watson, 273 F.3d 599, 603 (5th Cir. 2001) (citation
omitted). Moreover, “facts underlying the suppression determination are
reviewed in the light most favorable to the prevailing party, which in this case
is the Government.” Meals, 21 F.4th at 906 (citation omitted). And the
court may generally “affirm the district court’s ruling on a motion to
suppress based on any rationale supported by the record.” United States v.
Wise, 877 F.3d 209, 215 (5th Cir. 2017) (internal quotation marks and citation
4
Thurman’s base offense level was increased by two points pursuant to
USSG § 2K2.1(b)(4) because the firearm was stolen. But he received a three-point
reduction under USSG § 3E1.1(a) and (b) for accepting responsibility.
5
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omitted). “Our review is particularly deferential where denial of the
suppression motion is based on live oral testimony because the judge had the
opportunity to observe the demeanor of the witnesses.” United States v.
Michalik, 5 F.4th 583, 588 (5th Cir. 2021) (citation omitted).
We address in order Thurman’s challenge to the protective sweeps,
the applicability of the independent-source exception, and whether the
district court properly calculated Thurman’s base offense level.
A.
I.
The district court ruled that “[t]he protective sweep conducted in
Parkview Apartment No. 74 [was] constitutionally valid[]” based on the
anonymous tip regarding the gun and the officers’ articulated concerns about
someone remaining inside. 5 Thurman contends that “no exigent
circumstances compel[ed] the entry into [his] residence for a protective
sweep[]” and reasons that the court should have suppressed the evidence
seized as a result of the search. He specifically emphasizes that nothing
suggested anyone else was inside, as evidenced by Passman’s decision to turn
his back to the unit’s interior. And, Thurman insists, officers would not have
waited three minutes to conduct the sweep if they truly perceived danger.
5
The magistrate judge evaluated considerations this court has held pertinent to the
protective-sweep exception. The district court, in contrast, assessed considerations related
to the exigent-circumstances exception. But the two exceptions are analytically distinct.
Compare Maryland v. Buie, 494 U.S. 325, 334 110 S. Ct. 1093, 1098 (1990), with Kirk v.
Louisiana, 536 U.S. 635, 638, 122 S. Ct. 2458, 2459 (2002) (per curiam). We may
nonetheless “affirm . . . based on any rationale supported by the record” and will therefore
evaluate the sweeps based on considerations identified by the magistrate judge. Wise,
877 F.3d at 215 (5th Cir. 2017) (internal quotation marks and citation omitted).
6
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This court assesses the validity of protective sweeps by evaluating
whether:
o First, the officers had a legitimate law enforcement purpose
for entering the dwelling;
o Second, the sweep was supported by a reasonable,
articulable suspicion that the area to be swept harbored an
individual posing a danger to those on the scene;
o Third, the sweep was no more than a cursory inspection of
those spaces where a person may have been found; and
o Fourth, the sweep lasted no longer than was necessary to
dispel the reasonable suspicion of danger and no longer than
the police were justified in remaining on the premises.
United States v. Mendez, 431 F.3d 420, 428 (5th Cir. 2005) (citing United
States v. Gould, 364 F.3d 578, 587 (5th Cir. 2004) (en banc), cert. denied
543 U.S. 955, 125 S. Ct. 437 (2004), abrogated in part on other grounds by
Kentucky v. King, 563 U.S. 452, 461-70, 131 S. Ct. 1849, 1857-62 (2011). In
doing so, “we consider the totality of the circumstances surrounding the
officers’ actions.” United States v. Silva, 865 F.3d 238, 241 (5th Cir. 2017)
(per curiam) (citation omitted). “If reasonable minds could differ on the
whether the sweep was warranted, we do not second-guess the judgment of
experienced law enforcement officers concerning the risks in a particular
situation.” Id. at 242 (citation omitted).
7
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With respect to the first consideration, officers suspected that
Thurman had an “assault rifle[,]” which could have fired the numerous .223
rounds in the nearby parking lot two days earlier. They had also examined
Thurman’s background, which includes four drug-related convictions, one
conviction for fleeing arrest, and at least four other charges for allegedly
beating women on various occasions. And, as explained below, the officers
reasonably suspected that another person may have been hiding in the unit.
Viewing that evidence in the light most favorable to the government, officers
had a legitimate law enforcement purpose for entering the unit.
Regarding the second consideration, a child told Schmitz, as officers
approached the unit, that “somebody[]” besides Thurman was inside, 6 and
a woman and child remained in the apartment after Thurman initially exited.
It was therefore reasonable to suspect that someone else could be inside, and
that person could have foreseeably gotten hold of the suspected firearm.
Even if these suspicions were tentative, this court has “upheld the validity of
[a] protective sweep on the officers’ belief even though the factual basis for
the belief was disputable.” United States v. Wilson, 306 F.3d 231, 238 (5th
Cir. 2002) (citation omitted). Again, viewing these facts in the light most
favorable to the government, the initial and secondary sweeps were
6
The officers here did not hear noises or see movements suggesting that someone
was inside. Cf. United States v. Ibarra-Zelaya, 465 F.3d 596, 605 (5th Cir. 2006); United
States v. Maldonado, 472 F.3d 388, 393-94 (5th Cir. 2006). But from the child’s comment,
they had no way of knowing whether the child spoke of anyone else besides the woman.
And this court has upheld protective sweeps based on reports that a person and a firearm
were present in a residence. See United States v. Riley, 968 F.2d 422, 424 (5th Cir. 1992)
(determining that a warrantless entry was not unreasonable where an accomplice told
officers that “there was a large sum of money, a handgun, and another individual at the
residence he had just left”).
8
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supported by a reasonable, articulable suspicion that unit 74 harbored an
individual potentially posing a danger to officers on the scene. 7
Disagreeing, Thurman emphasizes that Passman “blocked any entry
into the apartment as he stood at the apartment’s entryway with his back to
the apartment’s interior . . . [,]” and that he did so “for a large part of the
time that [officers] stood talking with [him].” To be sure, an officer’s
“behavior [can] objectively reveal[] a purpose to conduct a search,” which
logically means that such behavior can also support or undermine the
reasonableness of a protective sweep. Florida v. Jardines, 569 U.S. 1, 10,
133 S. Ct. 1409, 1417 (2013). But Thurman ignores Passman’s conduct
during the sweeps. For example, Passman drew his gun and announced his
presence as he entered the unit to conduct the first sweep. If Passman was
truly unconcerned for his safety, such measures would have been
unnecessary. Further, Passman moved quickly and left the apartment
quickly. During the secondary sweep, Passman again drew his sidearm and
had two other officers providing backup. These actions were limited to
measures appropriate to the protection of officer safety rather than an
investigation for incriminating evidence. They dispel any inference that an
unreasonable search was occurring. 8
7
Thurman attempts to analogize the facts here to those present in United States v.
Menchaca-Castruita, 587 F.3d 283 (5th Cir. 2009) and United States v. Carter, 360 F.3d 1235
(10th Cir. 2004), where the respective courts held protective sweeps to have been invalid.
But both of those decisions involved protective sweeps based principally on the presence
of suspected drugs; neither involved suspicion of firearms based on anything other than
officers’ general association of guns with drug dealing. Menchaca-Castruita, 587 F.3d at
287; Carter, 360 F.3d at 1238. Officers here reasonably suspected the presence of a firearm
even apart from Thurman’s history in the drug trade.
8
Even assuming arguendo that Passman was not concerned for his safety, such lack
of concern cannot be imputed to other officers. Snowberger, for example, also entered the
unit with his gun drawn, illustrating his own concerns.
9
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Respecting the third consideration, “the area in front of the bed where
the gun was seen appeared to be wide enough space for someone to have
crouched down to avoid detection.” And “it took the officers only a little
over 30 seconds to find the weapon after the search began.” Moreover,
Passman “observed the baggie of marijuana in plain view on the
nightstand[]” at approximately the same time as he saw the gun. This court
has upheld the validity of protective sweeps under mattresses as police
searched for persons potentially hiding in hollowed-out spaces. See Silva,
865 F.3d at 243; United States v. Garcia-Lopez, 809 F.3d 834, 839 (5th Cir.
2016). The much more limited sweeps here amounted to no more than
cursory inspections of spaces where a person may have been found.
The fourth consideration, relating to the time consumed by the
sweeps, plainly cuts against suppression. Video evidence proves these
sweeps lasted no longer than one minute, i.e., no longer than necessary to
dispel the reasonable suspicion of danger posed by another person and no
longer than the police were justified in remaining on the premises.
Based on the totality of the circumstances viewed in the light most
favorable to the government, the initial and secondary protective sweeps
were constitutionally reasonable.
II.
Even if the sweeps were invalid, the district court (and the magistrate
judge) determined that, once Lambert perceived the odor of marijuana, “all
of the evidence sought to be suppressed would have been discovered
pursuant to an independent source[] sufficient to withstand exclusion of the
evidence . . . .” Thurman, however, contends that the marijuana odor could
have blown in from another apartment. He also argues that “[t]he unlawful
sweep of [his] apartment unquestionably motivated the officers’ decision to
procure a warrant[,]” and given that connection, “the [g]overnment failed to
10
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show that the marijuana formed an independent basis for entering the
apartment, unconnected to the unlawful search.”
The independent source exception to the exclusionary rule “allows
trial courts to admit evidence obtained in an unlawful search if officers
independently acquired it from a separate, independent source.” Utah v.
Strieff, 579 U.S. 232, 238, 136 S. Ct. 2056, 2061 (2016) (citation omitted). To
determine whether lawful searches and seizures are genuinely independent
of earlier tainted ones, we must assess whether “the expurgated warrant
affidavit provided probable cause for the issuance of the warrant by the
magistrate judge[]” and “whether the illegal search affected or motivated the
officers’ decision to procure the search warrant.” United States v. Restrepo,
966 F.2d 964, 966 (5th Cir. 1992), cert. denied, 506 U.S. 1049, 113 S. Ct. 968
(1993) (citing Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529 (1987)
(emphasis in original)). We review determinations respecting the first
consideration de novo and those regarding the second for clear error. United
States v. Hassan, 83 F.3d 693, 697 (5th Cir. 1996).
Regarding the first consideration, the search warrant contained
sufficient information to justify a search without reference to anything seen
during the protective sweeps. In fact, Lambert’s search warrant affidavit
included only a single sentence referring to anything observed during the
protective sweep and only mentioned contraband observed in plain view.
Similar affidavits have provided probable cause where officers had
independent evidence of suspected drug activity. See United States v. Hearn,
563 F.3d 95, 102 (5th Cir. 2009). The affidavit here also stated that “[w]hile
speaking with [Thurman,] an odor of marijuana was detected coming from
the apartment.” Lambert later testified that he could “smell it from the
moment [officers] walked up to the front door[.]” The district court
“accept[ed] the veracity of Lambert’s testimony made under oath at the
hearing, which he also made under oath before the state court judge.” This
11
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finding is therefore heavily weighted in the government’s favor. See Michalik,
5 F.4th at 588 (citation omitted). Further, “[d]istinctive odors, detected by
those qualified to know them, may alone establish probable cause.” United
States v. McKeever, 906 F.2d 129, 132 (5th Cir. 1990) (collecting cases).
Thus, excluding the single sentence related to the protective sweeps, the
search warrant’s reference to the smell of marijuana emitting from the unit
supported probable cause. See Hassan, 83 F.3d at 697.
The more subjective second consideration about the officers’
motivation concerns “the precise nature of the information acquired during
the illegal search” and “the relative probative import of this information
compared to all other information known to the officers.” Restrepo, 966 F.2d
at 972. Neither the district court nor the magistrate judge made express
findings regarding whether the officers were motivated to obtain the search
warrant based on evidence observed during the protective sweeps. The
district court did, however, adopt the magistrate judge’s finding that the
government satisfied the second consideration. 9
Passman’s post-sweep remarks and testimony in isolation could
suggest that the sweeps motivated him to procure a search warrant. For
example, Passman testified that he did not have sufficient grounds to apply
for a search warrant until “[a]fter the sweep was done and the items—the
marijuana, and the rifle were seen.” But he took no action to obtain a
warrant. On the contrary, he remained on scene and finally authorized
Schmitz to procure a warrant.
9
“Even where the district court has not made any factual findings, we have
independently review[ed] the record to determine whether the district court’s decision is
supported by any reasonable review of the evidence.” United States v. Mendez, 885 F.3d
899, 910 (5th Cir. 2018) (internal quotation marks and citations omitted) (alteration in
original).
12
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Schmitz was on the phone during the protective sweeps trying to
contact the apartment lessee. He neither participated in the sweeps nor saw
any contraband. 10 But Schmitz smelled marijuana at the premises and took
Lambert along to procure the warrant. Lambert later testified that Schmitz
largely told him what information to draft in the warrant application.
In sum, the record fairly shows that Schmitz catalyzed the search
warrant application without ever entering the unit, and Passman’s
involvement in submitting a warrant application was nil. Finally, the
application itself focuses on the smell of marijuana, with a mere mention of
items inside the apartment. We cannot form a definite and firm conviction
that the district court clearly erred by determining that the government
satisfied the second consideration. See United States v. Cabrera, 288 F.3d
163, 168 (5th Cir. 2002) (internal quotation marks and citations omitted).
The independent source doctrine thus independently would bar application
of the exclusionary rule.
B.
The PSR assigned Thurman a base offense level of 26 pursuant to
USSG § 2K2.1(a)(1) because he committed the offense at issue after
sustaining two felony convictions for controlled substance offenses, one of
which was a conspiracy offense. Thurman’s complaint about the guidelines
calculation is that his prior drug conspiracy conviction should not be included
because it is not a controlled substance offense within § 2K2.1. If that is
correct, his base offense level was much higher than it should have been. Our
precedent forecloses this contention. The reasoning behind our precedent is
developed in United States v. Kendrick, 980 F.3d 432, 444 (5th Cir. 2020),
10
Passman told Schmitz about the contraband, but it is unclear what role that
played in his decision making.
13
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cert. denied, 141 S. Ct. 2866 (2021) (quoting United States v. Lightbourn,
115 F.3d 291, 293 (5th Cir. 1997)). 11
For the reasons stated above, we AFFIRM the conviction and
sentence.
11
The district court stated it would have imposed an “identical” sentence even if
the guidelines range was “incorrect[.]” Thus, any error would be harmless. See United
States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009)(citations omitted).
14