PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 11-4624
JORDAN LAUDERMILT,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Senior District Judge.
(5:11-cr-00010-FPS-JES-1)
Argued: March 22, 2012
Decided: May 3, 2012
Before SHEDD, KEENAN, and FLOYD, Circuit Judges.
Reversed and remanded by published opinion. Judge Shedd
wrote the opinion, in which Judge Keenan and Judge Floyd
joined.
COUNSEL
ARGUED: William J. Ihlenfeld, II, OFFICE OF THE
UNITED STATES ATTORNEY, Wheeling, West Virginia,
for Appellant. Brendan S. Leary, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Wheeling, West Virginia, for
2 UNITED STATES v. LAUDERMILT
Appellee. ON BRIEF: Randolph J. Bernard, Assistant United
States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellant. Kris-
ten M. Leddy, Research and Writing Specialist, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Martinsburg, West
Virginia, for Appellee.
OPINION
SHEDD, Circuit Judge:
A federal grand jury indicted Jordan Laudermilt on one
count of possession of a firearm after a felony conviction, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a). Laudermilt
moved before trial to suppress the firearm, arguing that the
police seized it in violation of the Fourth Amendment. The
district court agreed, and the Government noted a timely
appeal under 18 U.S.C. § 3731. Because the police officers’
actions in this case complied with the Fourth Amendment, we
reverse.
I.
On the rainy evening of February 27, 2011, at around 10
p.m., Shannalee Kuri placed a 911 call to report that Lauder-
milt, who was her boyfriend, was threatening her and her fam-
ily with a gun at his home in Wheeling, West Virginia.1 The
Ohio County Sheriff’s Department responded by sending five
officers to the scene—Deputies Brooks, Costello, Moore, and
Bise, and Sergeant Ernest. Because the residence was located
close to the campus of West Liberty University, an officer
from that Department, Sergeant Olejasz, also responded. The
officers were familiar with the residence because of past
domestic disputes involving its occupants.
1
Just prior to this call, Kuri’s sister-in-law had placed three 911 calls
relaying the same events.
UNITED STATES v. LAUDERMILT 3
The officers arrived at Laudermilt’s property in staggered
succession and approached the house, which was located at
the end of a lane atop a hill. Shortly after arriving at the prop-
erty, Sergeant Olejasz and Deputy Costello initiated a traffic
stop of a vehicle leaving the residence because they noticed
there was an individual "slouched" down in the passenger
seat. (J.A. 154). After confirming that Laudermilt was not the
passenger, the officers permitted the car to leave and contin-
ued up the hill. Outside the house, the officers encountered
Kuri, her brother, and her father. Kuri and her father informed
the officers that Laudermilt was inside the house with a gun.
After the officers’ arrival, Laudermilt—unaware of the offi-
cers’ presence—intermittently exited the house onto the front
porch to threaten Kuri and her family, shouting he would
"kill" her and that he was going to "f**k them up." (J.A. 91).
Although the officers never witnessed Laudermilt with a gun,
on one occasion he exited the house, knelt down out of view,
picked something up, and returned inside. The officers deter-
mined the best course of action was to seize Laudermilt the
next time he exited the house without a firearm. When
Laudermilt did so, the officers quickly moved in and took him
into custody.
At that point, Deputies Costello, Brooks, and Moore, along
with Sergeant Ernest, entered the residence to perform a pro-
tective sweep. Laudermilt shouted to Deputy Bise and Ser-
geant Olejasz—who were securing his arrest—that his 14-
year-old brother, J. Lee Pritt, was in the house. Laudermilt
also informed them that Pritt was autistic. The four officers
performed a protective sweep of the upstairs of the house,
with Deputy Costello and Deputy Moore covering the bed-
rooms on the right side of the house, and Deputy Brooks and
Sergeant Ernest sweeping the bedrooms to the left. In per-
forming the sweep, Deputy Costello quickly found Pritt, who
was "shaking" and talking on the phone with his mother,
informing her of the police presence. (J.A. 128). Deputy Cos-
tello escorted Pritt downstairs, attempting to calm him. Cos-
tello initially walked Pritt outside but then returned him inside
4 UNITED STATES v. LAUDERMILT
to the kitchen. By this time, Deputy Bise had entered the
house and was sitting in the kitchen. As Pritt came into the
kitchen and sat down, Deputy Bise asked him if he knew
where the gun was. Pritt, who had been "freaking out" and
"panicking," stood up and walked to a pantry off the kitchen
and pointed to a rifle sitting in plain view on a gun rack. (J.A.
116). While Deputy Bise secured the rifle, Deputy Brooks and
Sergeant Ernest continued to complete their sweep. The total
sweep, from start to finish, lasted about five minutes.
At the time the officers conducted the search, there was
conflicting information regarding how many occupants might
be in the house. Deputy Brooks testified that, pursuant to the
radio call he received, he believed Laudermilt and two other
males were in the house, and that when he began the sweep,
he believed two subjects might still be in the home. (J.A. 77,
83). Deputy Costello testified that Laudermilt told him
another person was inside, and that Deputy Bise later called
out that Laudermilt’s autistic brother was in the home. (J.A.
134-35). Deputies Moore and Bise testified that they believed
only Pritt was inside, and Sergeant Ernest testified that the
information about the number of occupants was unclear. As
noted above, two individuals left the property as the officers
arrived and Kuri and her family were also on the premises.
Based on the foregoing, a grand jury indicted Laudermilt
for violating §§ 922(g)(1) and 924(a). Laudermilt moved to
suppress the firearm, and, following an evidentiary hearing,
the magistrate judge recommended granting the motion. The
magistrate judge concluded that a protective sweep of the
home was authorized but that the "exigent circumstances"
ended by the time the firearm was seized because "the resi-
dence had been secured." (J.A. 178). The judge explained,
"[a]fter the protective sweep, the police officers had all indi-
viduals in the home that night either in police custody or
under police control thereby negating any exigent circum-
stances argument." (J.A. 178).
UNITED STATES v. LAUDERMILT 5
After the Government filed objections to the magistrate
judge’s report, the district court adopted the report and
granted the motion to suppress. The district court concluded
that a protective sweep was authorized under Maryland v.
Buie, 494 U.S. 325 (1990), but that Buie did not permit offi-
cers "to seize the firearm after the residence had been secured
and the protective sweep had ended." (J.A. 213). In the dis-
trict court’s view, because Laudermilt told Deputy Bise that
only his brother was in the house, "Deputy Bise was aware
that the house was secure when Pritt was brought downstairs
to the kitchen," and that "[f]rom the perspective of Deputy
Bise, a suspicion of danger could not have existed" after that
point. (J.A. 214). The district court noted that the sweep itself
was still ongoing while Bise spoke to Pritt in the kitchen and
recovered the gun, but found that fact irrelevant because "it is
Deputy Bise’s knowledge that is key." (J.A. 214). The court
recognized that the case "present[s] a situation in which con-
scientious law enforcement officers are working under poten-
tially dangerous conditions and circumstances requiring
action over a short period of time," but nonetheless concluded
that the firearm’s seizure violated the Fourth Amendment.
(J.A. 215).
II.
In reviewing the grant of a suppression motion, we review
the court’s factual findings for clear error and its legal deter-
minations de novo. United States v. Lewis, 606 F.3d 193, 197
(4th Cir. 2010). In performing our review, "we must construe
the evidence in the light most favorable to the prevailing
party, and give due weight to inferences drawn from those
facts by resident judges and law enforcement officers." Id.
(internal quotation marks omitted).
A.
The Fourth Amendment protects "[t]he right of the people
to be secure in their persons, houses, papers, and effects,
6 UNITED STATES v. LAUDERMILT
against unreasonable searches and seizures." U.S. Const.
amend. IV. "It is a ‘basic principle of Fourth Amendment law
that searches and seizures inside a home without a warrant are
presumptively unreasonable.’" Brigham City v. Stuart, 547
U.S. 398, 403 (2006) (quoting Groh v. Ramirez, 540 U.S. 551,
559 (2004)). Nonetheless, this "presumption may be over-
come in some circumstances because the ultimate touchstone
of the Fourth Amendment is ‘reasonableness.’" Kentucky v.
King, 131 S.Ct. 1849, 1856 (2011) (internal quotation marks
and alteration omitted).
One "well-settled" exception to the warrant requirement is
a "protective sweep" under Buie. United States v. Jones, 667
F.3d 477, 482 (4th Cir. 2012). When police officers make an
arrest at a home, they are entitled to perform a further "protec-
tive sweep" of the house when they have "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 dan-
ger to those on the arrest scene." Buie, 494 U.S. at 334. "This
standard is an extension of the doctrine that permits a police
officer to pat down an individual for concealed weapons upon
a reasonable suspicion that the individual might be armed,
provided that the officer’s belief is grounded in ‘specific and
articulable facts.’" United States v. Martins, 413 F.3d 139,
149 (1st Cir. 2005) (quoting Buie, 494 U.S. at 331-32 (inter-
nal quotation marks omitted)).
A protective sweep is limited to "a cursory inspection of
those spaces where a person may be found" and should last
"no longer than it takes to complete the arrest and depart the
premises." Buie, 494 U.S. at 335–36. We have distilled this
language to indicate that "the sweep may last no longer than
needed ‘to dispel the reasonable suspicion of danger’ and no
longer than needed to arrest the suspect and leave the prem-
ises." United States v. Green, 599 F.3d 360, 376 (4th Cir.
2010) (quoting Buie, 494 U.S. at 335-36). We recently noted
that the "linchpin of the protective sweep analysis is not ‘the
UNITED STATES v. LAUDERMILT 7
threat posed by the arrestee, [but] the safety threat posed by
the house, or more properly by unseen third parties in the
house.’" Jones, 667 F.3d at 484 (quoting Buie, 494 U.S. at
336). Cf. Mora v. City of Gaithersburg, 519 F.3d 216, 226
(4th Cir. 2008) (upholding a preventive search when officers
"did not and could not fully know the dimensions of the threat
they faced").
Applying this framework, we believe the district court
erred in granting the suppression motion. We begin by noting
our agreement with the district court that the protective sweep
was justified by Buie. The officers were responding to a
potentially volatile situation involving a firearm and a domes-
tic dispute, and they personally witnessed Laudermilt threat-
ening Kuri and her family. When the officers arrested
Laudermilt, the firearm was unaccounted for and—even by
Laudermilt’s own admission—at least one other person was
in the home. In addition, as the officers were arriving on the
scene, two individuals were leaving in a vehicle, one of whom
was "slouched" over in his seat. Clearly, these articulable
facts would have led a reasonably prudent officer to believe
a protective sweep was warranted.2
We disagree, however, with the district court’s conclusion
that the sweep necessarily ended the very moment Pritt was
secured. The officers’ testimony before the district court indi-
cates a level of confusion regarding how many people were
in the house that evening. Deputy Brooks, one of the two offi-
cers who continued sweeping the house after Deputy Costello
secured Pritt, testified that his radio call indicated two other
adult males were on the premises; likewise, Sergeant Ernest
indicated that when he arrived he was unsure how many peo-
ple might be on the property. This confusion is indicative of
the escalating situation the officers faced—four 911 calls
placed in quick succession regarding a potentially violent
2
The fact that Laudermilt was arrested outside the home does not affect
the protective sweep analysis. See Jones, 667 F.3d at 485 n.10.
8 UNITED STATES v. LAUDERMILT
domestic confrontation. In addition to this confusion, testi-
mony established that at least two other individuals were in
the premises when the officers arrived—Sergeant Olejasz and
Deputy Costello initiated a traffic stop of a vehicle leaving the
premises.
The district court placed undue importance on Laudermilt’s
decision to inform the officers that only his special needs
brother was in the house. While this admission serves as an
articulable fact justifying the protective sweep, see United
States v. Cavely, 318 F.3d 987, 996 (10th Cir. 2003) (noting
protective sweep justified, in part, because homeowner
arrested outside house informed officers a "friend" was
inside), officers are not bound by a suspect’s statement. See
Solis-Alarcon v. United States, 662 F.3d 577, 582 (1st Cir.
2011) (noting, in upholding protective sweep for arrest sus-
pect, that "[t]he officers were not required to accept plaintiffs’
word that [the suspect] was absent"). At the time the officers
seized Laudermilt, they reasonably believed at least one other
person and a firearm were inside the house. Under such cir-
cumstances, we do not believe the sweep had to cease the
moment Pritt was secured.
As we have previously explained, "[w]e are to approach the
Fourth Amendment . . . with at least some measure of prag-
matism. If there is a grave public need for the police to take
preventive action, the Constitution may impose limits, but it
will not bar the way." Mora, 519 F.3d at 222. The district
court’s ruling failed to "recognize that unaccounted-for third
parties with access to firearms may present a grave danger to
arresting officers." Fishbein ex rel. Fishbein v. City Of Glen-
wood Springs, Colorado, 469 F.3d 957, 962 (10th Cir. 2006).
That grave danger permitted the officers to conclude the
sweep of the entire house. In addition, the entire sweep lasted
about five minutes; this was not a situation where the officers
secured a third-party and used that as a justification for a
broad-reaching or lengthy additional search. See, e.g., id. at
961-62 (upholding sweep with duration of five minutes);
UNITED STATES v. LAUDERMILT 9
United States v. Burrows, 48 F.3d 1011, 1017 (7th Cir. 1995)
(same); United States v. Delgado, 903 F.2d 1495, 1501-02
(11th Cir. 1990) (same).
Laudermilt relies on a recent line of our cases, epitomized
by United States v. Foster, 634 F.3d 243 (4th Cir. 2011), for
the principle that this court will not accept "post hoc rational-
izations to validate those seizures that happen to turn up con-
traband." Id. at 249. See also United States v. Powell, ___
F.3d ___, 2011 WL 5517347, at *1 (4th Cir. 2011) (noting for
fourth time in 2011 "we once again are presented with a case
in which the Government has attempted to meet its burden
under Terry[ v. Ohio, 392 U.S. 1 (1968)], by cobbling
together a set of facts that falls far short of establishing rea-
sonable suspicion."). In Foster, we further noted "our concern
about the inclination of the Government toward using what-
ever facts are present, no matter how innocent, as indicia of
suspicious activity." Id. at 248.
In Laudermilt’s view, the Government is engaging in the
same post hoc rationalizations in this case to create an emer-
gent situation from rather innocuous facts. We disagree; a
prominent difference between Foster and this case is that Fos-
ter addressed the police’s ability to stop and frisk under Terry.
The issue in those cases was the Government’s use of "inno-
cent" facts to justify suspicion. In this case, the officers were
responding to multiple 911 calls involving domestic threats
and a firearm and, in fact, bore witness to Laudermilt’s threat-
ening behavior. There is clear, objective evidence of an emer-
gent situation involving domestic violence and a firearm, and
the sweep was born of that situation. This is not a case like
Foster in which a search "happened" to turn up contraband.
The officers had specific witness statements that Laudermilt
possessed a firearm and was using it to threaten Kuri.
10 UNITED STATES v. LAUDERMILT
B.
Moreover, even assuming the sweep should have termi-
nated after Pritt was secured, we believe the seizure of the
firearm was still permissible. The protective sweep was con-
ducted on a rainy February night. A 14-year-old special needs
child, self-described as "freaking out" and "scared," was in the
house. (J.A. 116). We have previously noted that it is an offi-
cer’s "duty to look after the reasonable safety requirements of
persons in their custody." United States v. Gwinn, 219 F.3d
326, 333 (4th Cir. 2000). It was thus reasonable for the offi-
cers to permit him to stay in familiar surroundings until his
mother arrived home.3
Once the officers permitted Pritt to stay in the house, it was
not unreasonable for them to ask him about the firearm,
because "‘it is not unreasonable to determine if the child may
be safely left at its home.’" United States v. Taylor, 624 F.3d
626, 633 (4th Cir. 2011) (quoting In re Dawn O, 128
Cal.Rptr. 852, 854 (Cal. Ct. App. 1976)). Taylor illustrates
this point.
In Taylor, a police officer was attempting to reunite a four-
year old girl with her parents after she was found walking
alone on the street. After the girl identified her home, the offi-
cer knocked on the door and eventually entered, calling out
"hello." Id. at 629. A male voice then responded from an
upstairs bedroom, and the officer walked with the girl to the
room. Upon entering, the officer noted a plastic bag with bul-
lets; the officer also noted that the man became angry when
told that the girl was wandering the streets. Eventually, after
the man refused to provide identification or evidence that he
3
Laudermilt contends that, once Deputy Costello briefly walked Pritt
outside, the scene was secure and Pritt should have remained outside until
his mother arrived several minutes later. Here, it is Laudermilt applying
post hoc rationalizations. The officers had no way of knowing when Pritt’s
mother would arrive and were under no requirement to keep a scared spe-
cial needs child outside on a rainy night in the hopes that she would be
home soon. Likewise, the officers would have been derelict in their duty
to simply send Pritt back into the house by himself.
UNITED STATES v. LAUDERMILT 11
resided at the house, the officer conducted a quick protective
search of the room, uncovering a handgun under the bed. In
upholding the search, we explained:
The Supreme Court has recognized that "customary
social usage" will have a "substantial bearing on
Fourth Amendment reasonableness in specific cir-
cumstances," Georgia v. Randolph, 547 U.S. 103,
121 (2006), and we find it difficult to believe that the
officer’s solicitude for the interests of both parents
and children here would violate customary social
understanding in any sense.
Id. at 633-34. In this case, the officers’ decision to inquire
about the location of the firearm in order to make sure the
home was safe was not unreasonable. As in Taylor, "we find
it difficult to believe that the officer’s solicitude" for Pritt’s
interests "would violate customary social understanding in
any sense." Id. at 634.4
III.
In sum, the police officers’ actions in this case are consis-
tent with the Fourth Amendment. In a threatening domestic
situation, with information that at least a special needs child
was in the home, they conducted a properly circumscribed
protective sweep, which yielded the discovery of a firearm as
that sweep continued. Accordingly, the district court’s order
granting Laudermilt’s suppression motion is reversed, and this
case is remanded for further proceedings.
REVERSED AND REMANDED
4
Laudermilt suggested at oral argument that the officers had other
options in dealing with Pritt. However, even if that assumption is true, "the
fact that the protection of the public might, in the abstract, have been
accomplished by less intrusive means does not, by itself, render the search
unreasonable." Hunsberger v. Wood, 570 F.3d 546, 556 (4th Cir. 2009)
(internal quotation marks omitted).