concurring:
I concur in the court’s judgment in this case and in all of the court’s opinion except that part of the opinion relating to the court’s denial of the motion to suppress items seized from the auto body repair shop. I concur in sustaining the trial court’s decision not to grant the motion to suppress but on narrower grounds.
The so-called “protective sweep” is justified only in connection with protecting officers otherwise on the premises to execute a valid arrest. When an arrest takes place away from the premises at the distance that appears to be involved here, the officers are obviously in no danger unless they go on the premises with a valid warrant or other valid justification. Thus the threshold necessary to justify a protective sweep is not met absent more of a showing than has been made on the record in this case. Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); United States v. Owens, 782 F.2d 146, 151 (10th Cir.1986). However, I do not think that the protective sweep needs to be reached in this case. Nothing was seized prior to the authorities obtaining a proper search warrant. In addition, nothing in this record indicates that anything seen during the so-called “protective sweep” was used in order to obtain the search warrant. To the contrary, from the face of the warrant it appears that the information used was entirely independent from the so-called “protective sweep.” Under those circumstances, everything sought to be suppressed was the fruit of a valid search warrant. The judicially-invented “protective sweep” is thus entirely unnecessary to justify denying the motion to suppress in this case.