United States v. Kelly Donald Gould

DeMOSS, Circuit Judge,

dissenting, joined by CARL E. STEWART, Circuit Judge:

Because the majority opinion essentially creates another exception to the constitutional requirement that nonconsensual warrantless searches are unreasonable and this newly created exception is overly broad and unnecessary, I respectfully dissent.

This case presents the difficult issues of: (1) whether the protective sweep exception defined by the Supreme Court in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), is limited to situations involving the execution of an arrest warrant as we held in United States v. Wilson, 36 F.3d 1298 (5th Cir.1994); and if not (2) whether the search in this case was reasonable. In addressing these two issues, I think the majority makes three significant errors. First, the majority’s starting point in its Fourth Amendment analysis concerning a warrantless search of a home is faulty and therefore the majority does not fully account for the lack of consent in this case. Second, the majority’s reliance on the so-called “clearly” legitimate “knock and talk” police investigatory tactic is misplaced and therefore the majority’s holding leads to an end-run around the Fourth Amendment’s protections. Third, the majority has misconstrued the holding of the Supreme Court in Buie. I will address these three errors in order.

I.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to *599be searched, and the persons or things to be seized.

U.S. Const, amend. IV. Further, “[i]t is a ‘basic principle of Fourth Amendment law1 that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (citing Coolidge v. New Hampshire, 403 U.S. 443, 477-78, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). Additionally, the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Accordingly, our law dictates that unless some exception applies,' the search at issue in this case, a warrantless nonconsensual search of Kelly Gould’s bedroom in his home, must be found unconstitutional.

The majority is correct that the Supreme Court has outlined a “general reasonableness approach” that can be applied in Fourth Amendment pases and which requires balancing the intrusion on the protected interests against the promotion of legitimate governmental interests. See, e.g., United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). This reasonableness inquiry, however, is to be conducted within the bedrock legal boundaries outlined above, ie., a non-consensual warrantless search of a home is presumed unreasonable. Id. at 121, 122 S.Ct. 587 (describing what the Fourth Amendment normally requires). The inquiry conducted in Knights, that the majority purports to rely on in this case, is in fact within these legal boundaries because unlike in this case, the defendant in Knights was on probation and as a term of his probation had consented in writing to unannounced searches of his home. Id. at 114, 122 S.Ct. 587. The Supreme Court found the “probation search condition” a “salient circumstance” and thus both the intrusion on the defendant’s expectation of privacy was less and the governmental interest was greater, ie., heightened concerns due to the fact that probationers are more likely to engage in criminal conduct, making the search at issue in that case constitutional. Id. at 118, 122 S.Ct. 587. Therefore, unlike in this case, where there is no probation and no general consent agreement, the Supreme Court’s reasonableness inquiry in Knights is well within established Fourth Amendment jurisprudence.

Unfortunately, the majority opinion skips some significant concerns in this case and does not address the established legal principles I have already outlined. The . majority’s inquiry starts by giving too little credence to Gould’s privacy interest and the intrusion of the officers coming into his house late in the evening to look for him when they had no factual basis whatsoever for assuming he would be agreeable to tálking to them or that he was even present. When a search is performed pursuant to consent, the government has the burden of proving that the individual who gave consent had the authority to do so and that the search was conducted within the scope of that consent. United States v. Ibarra, 965 F.2d 1354, 1356 n. 2 (5th Cir.1992) (en banc). “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). The majority opinion emphasizes that the officers were legitimately in the home. The record, however, is clear that the officers did not have consent to enter Gould’s bedroom. Even resolving all factual disputes and making all credibility determinations in favor of the government, the testimony at the suppression hearing *600indicated that Cabral thought Gould was either in the backyard working out or in his (Gould’s) bedroom. As officers went back to the bedroom they may have thought Gould was possibly there but they testified that he did not appear to be present and they understood that they never had consent to enter the bedroom. The legitimacy of the officers’ presence, if legitimate at all, ended at the threshold to the bedroom door.1 The majority seems to wash over this concern by not fully addressing the issue and instead references the very distinguishable Knights holding. This case, however, is different than Knights because here the consent did not extend to the entire residence. If the majority believes the search was based on consent then that should be the holding, rather than creating an additional unnecessary and overly broad exception to the warrant requirement.2 In summary, because the majority starts from the wrong place, it ends in the wrong place and hence its Fourth Amendment analysis is flawed.

II.

In satisfying its first requirement of this newly created exception to the protections afforded by the Fourth Amendment, i.e., that the officers were legally present in the mobile home, the majority relies on the “knock and talk” police investigatory tactic mentioned in United States v. Jones, 239 F.3d 716, 720 (5th Cir.2001). The majority refers to this practice as being “clearly ... recognized as legitimate.” The “knock and talk” tactic is hardly well-established law.3 The Fifth Circuit case establishing the concept of “knock and talk” merely states that “[t]his investigative tactic is not inherently unreasonable.” Jones, 239 F.3d at 720.

Use of the “knock and talk” tactic may be reasonable in some cases, e.g., police may follow-up on a lead and approach a citizen, seeking the citizen’s cooperation. In this case, however, the officers conducted an intrusive search of a bedroom with neither consent, nor search warrant, nor arrest warrant, rpor any exigent circum*601stances. The majority has created an exception that permits an officer to ask for permission to enter a home from a third party who may have authority to consent to only part of the home but not all of the home and then immediately contend that he, the officer, is so apprehensive about his own safety that he must conduct a protective sweep of areas where he has no consent to be, when the officer had no obligation or duty to enter the home in the first place. This new exception is really a “knock, enter, maybe talk, and search” police investigatory tactic, all conducted without a warrant, and resulting in an end-run around the protections afforded by the Fourth Amendment.

In addition, the majority has not stated why then1 new exception is necessary or why we should not find that the officers created a situation that resulted in a Fourth Amendment violation when they in fact had many other permissible ways to pursue their investigation, ie., seeking a search warrant based on the informant’s tip. The majority does address the issue of exigent circumstances that can sometimes make a warrantless search permissible. This search, however, as the majority agrees, is not based on any exigency. In fact, as the district court noted the officers “could have approached the defendant as he left his mobile home one day, or they could have followed him and approached him in any other public place without necessitating the entry into his residence.” Just as there was no consent, there was no exigent circumstance to support this search.

Recognizing that the officers cannot create the exigency, we evaluate the reasonableness of the officers’ conduct not at the point of the search but prior to the point when the encounter escalates making a search necessary or a foregone conclusion. United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir.1986). Therefore, in this case, the officers’ conduct is not evaluated at the point when they are searching for Gould because according to the government the officers are concerned that Gould might ambush them. Instead the reasonableness of the conduct is evaluated at the point in time when the officers call for Gould and he does not answer because according to the officers’ testimony he does not appear to be in his room. United States v. Gould, 326 F.3d 651, 652 (5th Cir.2003). At that point in time, it is more reasonable to assume Gould is either not present or if present does not wish to talk to the officers, than that Gould is about to unleash some surprise attack on the officers. Likewise, it is unreasonable for the officers, under no duty to execute an arrest warrant and not having consent, to go into Gould’s bedroom to seek him out. The officers had no duty to persist, and in fact the officers had no authority to persist, in their search for Gould.

Of course, the government does not argue that the officers were searching for Gould wishing to talk to him because such a search is not within the protective sweep exception. Rather the government argues the officers were afraid Gould would attack them. This argument is contrary to the undisputed facts in the record that indicate Gould was at best avoiding the officers and at worst unaware of the officers because he was in the backyard. And although the officers knew of Gould’s violent past, there is nothing in the record to establish that Gould would be waiting for the officers in order to ambush them. Because the officers could not obtain the cooperation of Gould or because Gould actually was not present, the officers’ use of the “knock and talk” tactic, by definition, was unsuccessful and therefore the officers should have pursued their investigation by other means and not by an illegal search.

*602The majority is worried that affirming the district court’s decision to grant the motion to suppress will mean that law officers cannot use the “knock and talk” tactic if they are apprehensive of being ambushed. But voluntary engagement with law officers and not an ambush situation is precisely what the “knock and talk” tactic requires and to define the tactic as broadly as the majority has is essentially to do away with the warrant requirement. In other words, in some situations, such as this case, the “knock and talk” tactic progressed as far as lawful when Gould was non-responsive or not present. At that point, the officers should have pursued other means to continue their investigation — that is what the Fourth Amendment requires. The majority’s opinion is an unreasonable extension of the “knock and talk” tactic and does not fully account for the well-established Fourth Amendment principle that a warrantless nonconsensual search of a home is presumed unreasonable and in this case there was no exigency and nothing necessitating the intrusion into Gould’s bedroom.

III.

We decided to review en banc the Gould case to determine: (1) whether the rule established in Wilson that a protective sweep of a home was limited to an arrest situation, as defined by the Supreme Court in Buie, was correct; and (2) if the protective sweep exception to the search warrant requirement is not limited as Wilson and Bide indicate, whether the warrantless search of Gould’s bedroom was reasonable.

The majority characterizes the rule outlined in Wilson as a “bright-line” rule; Wilson, however, directly follows the precise language used by the Supreme Court in its definition of the protective sweep exception in Buie. See Wilson, 36 F.3d at 1305-06. The protective sweep exception as outlined in Buie requires the following three elements. First, the officers must be executing an arrest warrant in a suspect’s home. See generally Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (mentioning over 65 times the concept of arrest in a home when defining a protective sweep). Second, the officers must perceive some danger from another person or persons. Id. at 332-36 (indicating that not every in-home arrest will justify a protective sweep and listing several factors that are used to validate the reasonableness of the perceived danger, such as the nature of the crime for which the arrest is being executed, the likely presence of cohorts, and the time and place of arrest). Third, the search may only be a quick and limited cursory inspection of those places another person might be hiding. Id. at 335-36. Here, the majority has ignored the first two elements and only addressed the third.4

*603Of course, there is good reason for the limited definition as outlined in Buie and tracked by this Court in Wilson. Such a definition avoids the quagmire that the majority finds itself in after rejecting the language in Buie and Wilson. The majority is forced to fashion a new exception with alternative elements that are vague; and as such the new exception swallows the rule that a warrant is generally required for an in-home search. After fashioning a new exception the majority is then forced to apply its vague standards and determine if the search at issue here was reasonable. Because the district court did not address the reasonableness of the search, it would seem more appropriate to me for this Court to remand the case for a more detailed inquiry into the complicated and extremely fact specific issue of reasonableness. See Buie, 494 U.S. at 337, 110 S.Ct. 1093 (noting that remand was required to determine if the protective sweep, although conducted in the context of the execution of an arrest warrant, was based on a reasonably perceived threat of danger from an additional person and was a limited cursory inspection as defined by the Supreme Court). Remand to address this complicated inquiry, however, would not be necessary if the holding of Buie is followed.

First, the element that the officers must be executing an arrest warrant in a home in order to conduct a protective sweep cannot be so easily disposed of and an alternative substituted for it. As the Buie court noted:

The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter.... A protective sweep ... occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s “turf.”

494 U.S. at 333, 110 S.Ct. 1093; see also Knowles v. Iowa, 525 U.S. 113, 117, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (finding that the danger to the officers “flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty”). In place of this element the majority substitutes the following element: the police presence in the home must be for a legitimate law enforcement purpose. The majority’s element is an inadequate substitution. There are many legitimate law enforcement purposes that may permit officers to do something short of conducting a warrantless search, e.g., enter a home for the purpose of talking to the person who gave the officers consent and had authority to consent to the entry. Such a legitimate purpose does not somehow give the officer carte blanche to then search the house.5 In the protective sweep situation, as defined by Buie, the officers must have more than a legitimate purpose to be in the home, the officers must have a compelling reason, ie., be in the house under the obligation to execute an arrest warrant. This requirement is, in fact, the essence of the Buie holding and this requirement is a limiting factor on the officers’ conduct that is missing from the majority’s opinion.

Second, Buie is not about fear of the person to be arrested. 494 U.S. at 328, 110 S.Ct. 1093 (noting that Buie was already arrested when the protective sweep was conducted). Such a fear or concern for officer safety is already sufficiently *604protected by allowing the officers to actually execute the arrest warrant and search for the person subject to the arrest if necessary. See, e.g., Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (addressing both the threat posed by the arrestee and the scope of a search incident to an arrest). Buie is about a reasonable, articulable suspicion “that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 337, 110 S.Ct. 1093. Here, there is no such fear, and the majority opinion allows the officers to do something they normally would need a warrant to do, search a residence which they do not have consent to search and where the resident is either not present or not interested in talking to them. Again, the majority’s neglect of this requirement leads to an overly broad new exception to the Fourth Amendment.

The majority opinion mentions two temporal limitations on the protective sweep that were articulated in Buie. These limitations are: that the protective sweep “last[ ] no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” Buie, 494 U.S. at 335-36, 110 S.Ct. 1093. The majority, changing the language of these limitations slightly, neglects the fact that these limitations depend on the arrest and the officers search for someone other than the arrestee and therefore apart from these requirements the limitations are hollow and void of any objective criteria, ie., the duration of the arrest, by which to evaluate the officers’ conduct. Under the majority’s view these limitations are meaningless and this again points out the vagueness of the majority holding in this case.

Finally, in my view this case should have never been prosecuted in federal court. The original criminal conduct which precipitated the arrest was strictly local in nature: one Louisiana resident (Forehand) reported to the sheriff of one Louisiana parish (and not to the FBI, the DEA, the ATF, or the U.S. Marshall Service) that another Louisiana resident (Gould) had made oral threats to kill two Louisiana judges (not federal judges) and some other Louisiana residents (not residents of another state) apparently because of a proceeding of some sort in a Louisiana court (not a federal court) relating to a state law claim (not a federal question). If the admonitions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) about drawing a line between local and national interests have any meaning at all, then this criminal investigation would have undoubtedly fallen on the local side of the line. All of the law enforcement actors in this case were state officers.

Furthermore, I think it would be ridiculous to conclude that the firearms found as a result of a warrantless search in Gould’s closets in Gould’s bedroom in Gould’s trailer home in the woods of rural Louisiana had any effect whatsoever, much less a substantial effect, on interstate commerce as Lopez and Morrison require for a federal prosecution. Lopez, 514 U.S. at 562-63, 115 S.Ct. 1624; Morrison, 529 U.S. at 608-09, 120 S.Ct. 1740.

The events which precipitated this case occurred on October 17, 2000. The federal indictment in this case was not handed down until August 9, 2001, more than 9 months later, which clearly indicates that the federal indictment was an afterthought. To better understand this anomaly and what actually happened during this period, I have prepared from the record a factual chronology of the events in this time frame which is attached as Exhibit A to this dissent.

*605From the chronology in Exhibit A, I would suggest that the following conclusions should be readily drawn:

A. The dismissal on March 5, 2001, of the state solicitation for murder charge for “no probable Cause” pulls the rug out from under the government’s assertion that Gould’s “threats to kill” were sufficiently real and immediate to justify talking with him even without any warrant; and
B. The decision of the state court on July 25, 2001, to grant Gould’s motion to suppress pulls the rug out from under the subsequent federal indictment based on identical facts; and should have been disclosed to the federal district court addressing the federal suppression hearing. Had it been, the federal district court might well have based its decision on the alternate ground that the state had already ruled the seizure of the firearms was unconstitutional.

In summary, the Fourth Amendment is the keystone that holds up the arch of our Bill of Rights which in turn is the unique contribution of our founding fathers to our system of government which has now survived longer than any other representative government in the world. In his famous dissent in Olmstead v. United States, Justice Brandeis called privacy — which he defined as: “the right to be let alone” — “the most comprehensive of rights and the right most valued by civilized men.” 277 U.S. 488, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928)(Brandeis, J., dissenting). Justice Brandéis argued that the framers knew that Americans wanted protection from governmental intrusion not only for their property, but also for their thoughts, ideas and emotions. Take away the Fourth Amendment and the right of privacy disappears.

The deputy sheriffs here in Gould made no attempt to develop a sworn affidavit in writing from the purported informant, Forehand,6 and they therefore made no attempt to get either a search warrant or an arrest warrant from an independent third party magistrate on the basis of probable cause. I have no doubt that the deputy sheriffs believed that they were acting reasonably and with good intentions. But the old adage warns us that “the road to hell is paved with good intentions.” In my judgment, that is precisely where the majority opinion wants to put us-by unhooking the “protective sweep” from its connection with the execution of an arrest warrant in a home, which is where the Supreme Court framed the concept. In my view the gambit of getting permission to enter a citizen’s home in order to talk to someone and then conducting a protective sweep search under the guise of sensing danger to the investigating officer will effectively eliminate the need for complying with the Fourth Amendment and at that point we will all be, literally and figuratively, on the road to hell.

Conclusion

The majority opinion creates a new exception to the Fourth Amendment that is *606overly broad and unnecessary. The district court’s granting of the motion to suppress in this case should be affirmed. For these reasons, I respectfully dissent.

EXHIBIT A

CHRONOLOGY

1. On October 17, 2000, the Livingston Parish Sheriffs Officers on the scene arrested Gould and charged him with the state crime of possession of a firearm by a convicted felon. See LA.Rev. Stat. Ann. § 14:95.1 (West 2004), in Cause No. 15571, 21st Judicial District Court, Livingston Parish.

2. On October 18, 2000, an arrest warrant was issued out of the East Baton Rouge Parish charging Gould with Solicitation for Murder. See LA.Rev. Stat. Ann. § 14:28.1 (West 2004).

3. Gould was in the custody of the East Baton Rouge Parish from October 18, 2000, until March 5, 2001, when no probable cause was found for the Solicitation for Murder charge.

4. On March 5, 2001, Gould was returned to the custody of the Livingston Parish on the felon in possession charge.

5. On May 31, 2001, Gould filed a motion to suppress evidence obtained without a warrant in Cause No. 15571 in the 21st Judicial District Court of Louisiana. Gould’s motion was based on his argument that all physical evidence and any statements to be used against him were obtained without a search warrant and without his consent. An evidentiary hearing was held on Gould’s motion to suppress on July 25, 2001, at which one of the officers who arrested Gould on October 17, 2000, testified. At the end of this hearing the state judge granted Gould’s motion and bond was set and the ease was continued until September 19, 2001. No. 15571, Louisiana v. Kelly Gould.

6. Also on July 25, 2001, a federal criminal complaint was filed in the United States District Court for the Middle District of Louisiana charging Gould *607with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The person who swore out the affidavit was an agent of B.A.T.F. not one of the deputy sheriffs that was present on October 17, 2000, at Gould’s arrest. This affiant was apparently unaware of the fact that the state complaint on the solicitation for murder charge had been dismissed and the fact that the state felon in possession charge had been put on hold after the granting of Gould’s motion to suppress since he made no mention of those proceedings.

7. Gould made his state bond on July 26, 2001, and was released from state custody.

8. On August 9, 2001, Gould was indicted by a federal grand jury on the federal gun charge.

9. On August 17, 2001, there was a federal detention hearing and following the hearing Gould was ordered detained on the federal charges.

10. On September 19, 2001, the 21st Judicial District Court of Louisiana continued the state case against Gould subject to reassignment to another judge.

11. On December 19, 2001, the federal district court held a hearing concerning Gould’s motion to suppress. At this hearing there was testimony from the following local law officers: Detective Jim Brown who was in charge of the case for the Livingston Parish Sheriffs Office testified; his partner the night of the visit to Gould’s trailer, Officer Jason Ard testified; and Lieutenant Carl Krester, who had been assigned the case from the East Baton Rouge Sheriffs Office and was also present at Gould’s trailer, testified for the government. Dennis Cabral who worked with and lived with Gould and was present the night of the search testified for the defense. The B.A.T.F. agent who swore out the federal complaint on July 25, 2001, did not testify. Likewise, Forehand did not testify.

12. On April 2, 2002, the federal district court granted Gould’s federal motion to suppress.

13. After granting the motion to suppress the federal district court continued the trial date indefinitely pending the government’s appeal of the granting of the motion to suppress.

14. Gould’s motion to be released on bond pending appeal was denied on June 3, 2002, and according to the record Gould has remained in federal custody-

. The majority indicates that the protective sweep allowed the officers to go into an area that they did not have consent to enter, i.e., the bedroom. Consent is an issue concerning the officers' legitimacy to be on the premises and where this legitimacy begins and ends is a significant issue which the majority discusses in a contradictory fashion. For instance, if the officers had consent, they certainly exceeded the scope of the consent when they entered the bedroom. On the other hand, if the protective sweep exception allows the officers to enter the bedroom then the original consent validating their presence in the residence certainly did not understand this to be within the scope of the consent and therefore the consent was invalid and the officers’ presence was not legitimate in the first place. Under the majority’s view there is no way to resolve the issues regarding consent.

. Of course, such a holding would be contrary to the district court’s finding that Cabral did not have authority to consent to the search of Gould’s bedroom and after all, it is Gould's privacy interest that is at stake in this case.

.There are two aspects of Jones which make it a very weak decision upon which to posit a new exception to the Fourth Amendment. First the gun in Jones was lying in plain view on a kitchen table visible to the police officer standing outside the screen door of the entrance to the apartment. Id. at 719. The district court in Jones found that this hand gun in plain view was an “exigent circumstance,” justifying the officer’s entry into the apartment without a warrant. Id. at 720. No such circumstance exists here in Gould. Secondly, it is noteworthy that Jones has never been discussed or cited by the Supreme Court. Several other circuits have cited Jones but only the Sixth Circuit has really examined the Jones case and indicated some agreement with the Fifth Circuit’s "knock and talk” concept. United States v. Carter, 2003 WL 118265 *4 n.6 (6th Cir.2003) (vacated for rehearing en banc). This Sixth Circuit opinion, however, has now been vacated because the case was heard en banc, but there is presently no subsequent opinion available.

. The Supreme Court has never expanded the concept of the protective sweep from its original limited definition in Buie. In fact, there are only three Supreme Court cases even citing Buie, none of which include a discussion of the contours of the protective sweep. See Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997); United States v. James Daniel Good Real Property, 510 U.S. 43, 67, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993); Horton v. California, 496 U.S. 128, 140, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The only slightly relevant citation occurred in Richards where the Supreme Court addressed the appropriate balance between legitimate law enforcement concerns at issue in the execution of search warrants and individual pri- . vacy interests affected by no-knock entries. 520 U.S. at 394, 117 S.Ct. 1416. The Richards Court cited Buie for its allowance of "a protective sweep of a house during an arrest where the officers have 'a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.’ ” Id. (citing Buie, 494 U.S. at 337, 110 S.Ct. 1093) (emphasis added).

. See the discussion of the problems with the majority’s analysis of consent in section I of this dissent.

. After giving oral reports over the telephone to the deputy sheriffs about Gould and after being present at Gould's trailer house on the night of Gould's arrest, Forehand disappears from the investigation and processing of this trial. Forehand never gave a written statement to the deputy sheriffs and did not testify for the government at the suppression hearing so the government's case as to the need for the police to interview Gould (i.e., Gould’s threats to kill state judges) is based entirely on the hearsay testimony of the deputy sheriffs. There is nothing in this record that demonstrates the reliability or credibility of Forehand as a previous informant of the sheriff's department.