F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 24, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-3113
JOHN STEVENS HAUK,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 03-CR-20066-01-CM)
Michael L. Harris, Assistant Federal Public Defender, Kansas City, Kansas, for
Defendant-Appellant.
Leon J. Patton, Assistant United States Attorney (Eric F. Melgren, United States
Attorney, and Robert S. Streepy, Assistant United States Attorney, on the briefs),
Kansas City, Kansas, for Plaintiff-Appellee.
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.
Defendant-Appellant John Stevens Hauk appeals the district court’s denial
of his motion to suppress evidence discovered as a result of a protective sweep of
his residence. Mr. Hauk argues that the police lacked reasonable suspicion for the
protective sweep because it was based on uncorroborated information in an
anonymous tip. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the
district court’s denial of Mr. Hauk’s motion to suppress. However, on plain error
review, we conclude that Mr. Hauk’s sentence violated his Sixth Amendment rights
under United States v. Booker, 125 S.Ct. 738 (2005), and we exercise our discretion
to VACATE the sentence and REMAND to the district court for resentencing.
I.
On April 2, 2003, an anonymous caller informed the FBI Violent Crimes
Fugitive Task Force (“the Task Force”) that Mr. Hauk was selling illegal drugs out
of his house at 5050 Walker in Kansas City, Kansas. The record does not contain
any description of the caller, nor does it include a transcript or recording of the call.
The only record of the call is a tip sheet, which states:
Caller states that subject lives at the residence and has large quantities
of drugs in the home. Caller states that there is drugs in the ceiling,
hall closet by the bedroom, night stand next to the bed and in a duffle
bag in the closet. He also has scales in the bedroom. The drugs that
he has are cocaine, crack and marijuana. Subject sleeps in the day
time and is up at night selling. He has no dogs at his location but does
have guns in the home. Caller also states that he is a parole violator
and has warrants. He also has a “runner” who goes by the name of
Spencer. He drives a red Chevy Astro van. Caller states that he has
been in the home and does get drugs from him.
Motion to Suppress, R. Vol. I, Doc 19, 1–2. After he received this information,
2
Detective Michael Shomin of the Kansas City, Kansas Police Department confirmed
an outstanding state warrant for Mr. Hauk’s arrest for violation of parole. He also
obtained a photograph of Mr. Hauk.
On the following day, a number of Task Force officers set up surveillance of
5050 Walker. A group of officers met near the residence to plan an approach to
arrest Mr. Hauk. Before the approach began, a member of the surveillance team
informed Detective Shomin that a red Camaro had pulled into Mr. Hauk’s driveway.
The officer could not describe the driver or tell where he had gone, but he thought
that he might have entered the house.
Shortly thereafter, Task Force members surrounded the residence, and
Detective Shomin and another officer knocked on the front door. After a few
minutes, Mr. Hauk answered the door in his boxer shorts. Recognizing his callers
as police officers, Mr. Hauk immediately tried to close the door. The officers
forced their way into the house and arrested Mr. Hauk immediately inside the front
door. Detective Shomin and other officers then fanned out through the house to
conduct a protective sweep, which lasted approximately five to ten minutes. During
the sweep, the officers saw what appeared to be illegal drugs in several locations in
the house.
On the strength of their observations during the protective sweep, the police
obtained a search warrant for Mr. Hauk’s residence. During the ensuing search, the
police discovered a large quantity of cocaine and marijuana in Mr. Hauk’s room,
3
marijuana and a scale with white powder residue in the living room, and a suitcase
containing crack cocaine and a firearm in the second bedroom. Based on the items
seized from his house, the Grand Jury for the District of Kansas returned a two-
count indictment charging Mr. Hauk with possession with intent to distribute 50
grams or more of a mixture or substance containing cocaine base and possession
with intent to distribute 500 grams or more of a mixture or substance containing
cocaine hydrochloride, each in violation of 21 U.S.C. § 841(a)(1).
Mr. Hauk moved to suppress the evidence, arguing that the protective sweep
constituted an illegal search of his house. The district court denied the motion to
suppress, finding that “there were articulable facts which rationally led the agents
to the reasonable conclusion that another individual, whether a narcotics customer
or Mr. Spencer, might be in the home and might pose a danger to the arresting
officers.” Mr. Hauk entered a conditional guilty plea to count two, reserving his
right to appeal the denial of his motion to suppress.
II.
Mr. Hauk argues that the protective sweep was unlawful because the
arresting officers lacked reasonable suspicion that a third party posing a danger to
the officers was present in the house. If the protective sweep was unlawful, then
the police officers’ observations of drugs in the house could not have been used to
support the search warrant, and the products of the ensuing warranted search must
be suppressed.
4
We review the district court’s findings of fact on a motion to suppress for
clear error, viewing the evidence in the light most favorable to the government, but
the ultimate determination of reasonable suspicion or probable cause is a mixed
question of law and fact that we review de novo. Ornelas v. United States, 517
U.S. 690, 699 (1996); United States v. Santos, 403 F.3d 1120, 1124 (10th Cir.
2005). The parties agree on the relevant facts; therefore, we consider only the legal
question whether the protective sweep was justified by reasonable suspicion. See
Maryland v. Buie, 494 U.S. 325 (1990). We are free to affirm the district court’s
decision on any ground supported by the record. United States v. Esparza-
Mendoza, 386 F.3d 953, 957 (10th Cir. 2004).
A challenge to a search necessarily begins with the Fourth Amendment,
which 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 . . . and
particularly describing the place to be searched, and the persons or
things to be seized.
U.S. Const. amend. IV. When they first accosted Mr. Hauk at his home, the police
had a warrant for Mr. Hauk’s arrest. They did not (at that time) have a warrant to
search the house. An arrest warrant, however, “implicitly carries with it the limited
authority to enter a dwelling in which the suspect lives when there is reason to
believe the suspect is within.” Payton v. United States, 445 U.S. 573, 603 (1980).
5
In Maryland v. Buie, the Supreme Court recognized an exception to the
warrant requirement for a cursory, limited search of a residence incident to
arrest—a so-called protective sweep—if the circumstances present “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 danger to those on the arrest scene.” 494 U.S. at 334. This is
essentially the same “reasonable suspicion” standard that justifies the warrantless
frisk of an individual or the warrantless search of a vehicle’s passenger
compartment incident to the driver’s arrest. Id. at 332–34; see also Terry v. Ohio,
391 U.S. 1 (1968) (warrantless frisk); Michigan v. Long, 463 U.S. 1032 (1983)
(search of passenger compartment). Reasonable suspicion requires the officer to act
on “something more than an inchoate and unparticularized suspicion or hunch.”
United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotation marks omitted).
Reasonable suspicion may be established by information that is “different in
quantity or content” and less reliable than the information required to establish
probable cause. Alabama v. White, 496 U.S. 325, 330 (1990).
A.
Appellant argues that rather than being based on specific, articulable facts,
the protective sweep of his home was based on “generalizations by [the officers]
about drug offenders, their use of weapons, and their use of other people,” and
that the police officer conceded in his testimony that the sweep “would have
6
occurred regardless of the information in the anonymous tip.” He thus argues that
the search failed the constitutional standards for protective sweeps set forth in
Buie. The testimony to which Appellant refers is that of Detective Michael
Shomin:
Q: So I take it then it is just a matter of routine when you are
executing arrest warrants at a particular residence, that a protective
sweep then is done, because in your experience, there is at least some
likelihood that some other person might be present, correct?
A: Absolutely.
Q: So, as a general policy of the police department, when you
folks effect an arrest warrant, you routinely do a protective sweep
regardless, right?
A: For officer safety, absolutely.
Testimony of Detective Michael Shomin, R. Vol. II, 22:10–19.
The Fourth Amendment does not sanction automatic searches of an
arrestee’s home, nor does the fact-intensive question of reasonable suspicion
accommodate a policy of automatic protective sweeps. Given the specific mission
of the Task Force to apprehend violent fugitives, it may be that its arrests involve
a heightened level of danger. If this is the case, the circumstances of each arrest
might well create reasonable suspicion sufficient for a protective sweep. Applied
indiscriminately to all arrest warrants, however, the Kansas City policy sweeps
too broadly. For example, a routine protective sweep would presumably be
inappropriate if conducted by officers serving a warrant for a traffic ticket or
7
securities fraud. Cf. Ybarra v. Illinois, 444 U.S. 85, 94 (1979) (“The . . . Terry
exception does not permit a frisk for weapons on less than reasonable belief or
suspicion directed at the person to be frisked, even though that person happens to
be on premises where an authorized narcotics search is taking place.”); Denver
Justice & Peace Committee, Inc. v. City of Golden, ___ F.3d ___, 2005 WL
950648 (10th Cir. April 26, 2005) (rejecting the argument that officer safety and
general efficiency authorize the police to frisk, without reasonable suspicion, any
person who enters an area where a search warrant is being executed).
Neither do we endorse the Task Force’s practice of automatic protective
sweeps based on the assumption that “drug houses” are inherently dangerous.
Detective Shomin testified that drug houses are, in his experience, places of
violence, and this is no doubt true. However, given the Supreme Court’s general
disinclination to carve out subject-matter-specific exceptions from the Fourth
Amendment, see, e.g., Florida v. J.L., 529 U.S. 266, 272–73 (2000) (rejecting a
firearms exception to the Fourth Amendment and suggesting that a narcotics
exception would be equally improper); Mincey v. Arizona, 437 U.S. 385 (1978)
(rejecting a “murder scene exception” to the Fourth Amendment), its rejection of
a “felony drug investigation” exception to the knock-and-announce rule, see
Richards v. Wisconsin, 520 U.S. 385, 391–94 (1997), and the malleability of the
concept of a “drug house,” we decline to endorse the suggestion that the Fourth
8
Amendment accommodates a “drug house” exception. We note also that, even if
“drug houses” were categorically eligible for protective sweeps, police would
require specific, articulable facts to support reasonable suspicion that a given
building is a “drug house.”
If the government were relying on the validity of the Kansas City policy to
support this protective sweep, or if the subjective motivations of the officers in
undertaking the sweep were controlling, we would thus have to reverse this
conviction. In light of Detective Shomin’s testimony, there is every reason to
believe that the police engaged in the sweep of Mr. Hauk’s residence not because
they believed they had reasonable suspicion of danger, but because they were
executing a “general policy” of conducting protective sweeps in the course of all
arrests within a home. But the Supreme Court has squarely held that the legality
of searches and seizures under the Fourth Amendment depends not on the
subjective motivations of the police, but on whether there was an objectively
reasonable basis for the search or seizure. United States v. Whren, 517 U.S. 806,
813 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth
Amendment analysis.”); see also United States v. Ben Abdenbi, 361 F.3d 1282,
1292-93 (10th Cir.), cert denied, 125 S. Ct. 197 (2004) (holding that the
subjective intentions of the officer are irrelevant to the question whether an
individual consented to an encounter with the police). Thus, the question here is
9
not why the officers conducted the protective sweep of Mr. Hauk’s home
(apparently the answer to that is that they were following standard procedures),
but whether the totality of the circumstances established a reasonable basis for
them to do so. Resolving that question requires an examination of the anonymous
tip that gave rise to the encounter, as well as the other circumstances that gave
rise to suspicion that the officers were in danger when they were inside Mr.
Hauk’s home making the arrest.
We note, though, that the actual, subjective motivations of the police
officers in conducting the sweep may have relevance to the degree of deference
the district court should accord the officer’s professional experience and
judgment regarding whether reasonable suspicion of danger existed. Ordinarily,
as the Supreme Court has instructed, district courts must accord “due weight” to
the judgments of police officers on the ground that their “experience and
specialized training” may allow them “to make inferences from and deductions
about the cumulative information available to them that ‘might well elude an
untrained person.’” United States v. Arvizu, 534 U.S. 266, 273 (2002); see also
Santos, 403 F.3d at 1133. Where, however, there is reason to believe that the
officers conducted the search not on the basis of the particular facts of the case
but on some other grounds, such as standard operating procedure, the inference
that the judgment reflected their superior training and experience is
10
correspondingly weakened, and the “due” weight given their judgment is
correspondingly less. Cf. Santos, 403 F.3d at 1126 (explaining, in a case where a
motorist’s refusal of consent to search may have precipitated his detention in the
course of a traffic stop, that the “due weight” given to the district court’s
inferences “is substantially diminished when there is reason to believe those
inferences were affected by an illegitimate consideration”).
B.
When the articulable facts supporting reasonable suspicion come from an
informant, the police must have an objective basis to rely on the tip. If anonymous,
uncorroborated tips were deemed a sufficient basis for search, malicious
informants could use the device of a phoney tip to wreak injury (indignity, invasion
of privacy, suspicion, and sheer annoyance) on their enemies, rivals, or
acquaintances without fear of being held responsible. See United States v.
Johnson, 364 F.3d 1185, 1190–91 (10th Cir. 2004) . Even if the informant is well-
meaning, reliance on anonymous uncorroborated tips could result in searches based
on far less than an objective reasonable basis. If in Mrs. Grundy’s fertile
imagination, the innocent doings of her neighbors assume the aspect of dire
criminality, her report of her conclusions to the police does not mean that a
reasonable basis for suspicion exists. Information is only as good as its source, and
if police do not know the source and have no other means for verifying the
information, the mere fact that an anonymous tipster thinks there is mischief afoot
11
is not a sufficient basis for police action.
When police obtain “sufficient independent corroboration,” however, even an
anonymous tip generally provides a basis for reasonable suspicion. United States v.
Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000). By corroborating predictive
information in an anonymous tip, police officers “test the informant’s knowledge
and credibility,” getting some assurance that the tip is reliable. United States v.
Tuter, 240 F.3d 1292, 1297 (10th Cir. 2001) (quoting J.L., 529 U.S. at 271). Police
are entitled to rely on corroborated anonymous tips “because [if] an informant is
shown to be right about some things, he is probably right about other facts that he
has alleged, including the claim that the object of the tip is engaged in criminal
activity.” White, 496 U.S. at 331.
In Alabama v. White, for example, an anonymous caller informed the police
that the suspect would leave a specific apartment at a particular time, that she
would drive a brown Plymouth station wagon with a broken right tail light to a
particular motel, and that she would be carrying cocaine in a brown leather case.
Id. at 327. The officer who received the tip drove to the apartment mentioned in
the tip, where he saw the suspect come out of the building, with nothing in her
hands, and get into a brown Plymouth station wagon with a broken right tail light.
The officer followed the suspect while she drove “the most direct route” to the
motel mentioned in the tip. The officer stopped the suspect before she reached
the motel. The suspect consented to a search of her vehicle, which revealed
12
marijuana and a small amount of cocaine. Though it characterized White as a
“close case,” the Supreme Court held that corroboration of the predictive
information in the tip created reasonable suspicion for the initial stop. Cf. Illinois
v. Gates, 462 U.S. 213, 244-46 (1983) (finding a search warrant based on an
anonymous tip to be supported by probable cause when the police confirmed the
tip’s prediction of the suspect’s flight information, destination, and details about
his return trip); United States v. Hinojos, 107 F.3d 765 (10th Cir. 1997)
(upholding a traffic stop based on an anonymous tip because the informant
predicted the suspect’s route of travel through Oklahoma, claimed to have
observed the suspect’s activities directly, and passed the tip to a particular Kansas
DEA agent, suggesting a preexisting relationship).
Generally, to be sufficient to support an inference of credibility and
reliability, the corroborated information must be “predictive” in nature.
Predictive information is defined broadly as knowledge that the informant could
not acquire from any source but the suspect, whether directly or indirectly,
providing reason to believe that the informant has “inside information—a special
familiarity with [the suspect’s] affairs,” and is not just a member of the “general
public.” White, 496 U.S. at 332. In Florida v. J.L., an anonymous caller
reported that “a young black male standing at a particular bus stop and wearing a
plaid shirt was carrying a gun.” 529 U.S. at 268. Officers went to the bus stop,
13
where they saw J.L., a young black male wearing a plaid shirt. An officer
approached J.L., told him to put his hands up, and frisked him, finding a gun in
his pocket. Id. The Court held that the tip “lacked the moderate indicia of
reliability present in White” because the tip “provided no predictive information
and therefore left the police without means to test the informant’s knowledge or
credibility.” Id. at 271. The Court rejected the argument that “accurate
description of a suspect’s readily observable location and appearance” was
sufficient to justify reliance on the tip because it “does not show that the tipster
has knowledge of concealed criminal activity.” Id. at 272.
Reliance on an anonymous tip is justified when the tip contains “a range of
details relating not just to easily obtained facts and conditions existing at the time
of the tip, but to future actions of third parties ordinarily not easily predicted.”
Gates, 462 U.S. at 245, quoted in White, 496 U.S. at 332. Even if the facts
corroborated are themselves innocent, as in Gates and White, they may show the
informant to be a reliable source of information not available to the public or the
police, not merely a neighbor with ulterior motives or an active imagination.
Corroboration of information other than predictive facts, such as the basis
of the informant’s knowledge, the circumstances under which it was obtained, and
the amount of detail about the alleged criminal activity, can also justify reliance
on an anonymous tip in appropriate circumstances. See Gates, 462 U.S. at 234
14
(“[I]f we entertain some doubt as to an informant’s motives, his explicit and
detailed description of alleged wrongdoing, along with a statement that the event
was observed firsthand, entitles his tip to greater weight than might otherwise be
the case.”).
We stress that this case involved a protective sweep, rather than an
investigative detention or search, like that in White and J.L., and thus presents
somewhat different legal considerations. In the investigative detention cases,
reasonable suspicion must support both steps in the encounter—the investigative
detention and the ensuing search. The J.L. Court expressly limited its holding to
cases in which the officer relies on the tip to make the initial stop:
[T]he requirement that an anonymous tip bear standard indicia of
reliability in order to justify a stop in no way diminishes a police
officer’s prerogative, in accord with Terry, to conduct a protective
search of a person who has already been legitimately stopped. We
speak in today’s decision only of cases in which the officer’s
authority to make the initial stop is at issue.
J.L., 529 U.S. at 274. An arrest warrant gives the police unquestioned authority
to detain the suspect. Reasonable suspicion is required only for the second step,
the protective sweep. This step is less intrusive than the first. The suspect has
already been seized under authority of a warrant, and if he has been arrested in his
house, the threshold of the home has already been breached. Cf. Payton, 445 U.S.
at 585 (“[P]hysical entry of the home is the chief evil against which the wording
of the Fourth Amendment is directed.”). As a protective measure incident to a
15
valid seizure, a protective sweep incident to arrest therefore does not intrude on a
suspect’s Fourth Amendment rights to the same extent as an investigatory
detention. Moreover, a tip leading to a protective sweep incident to a lawful
arrest is a less propitious vehicle for the malicious tipster: because the target is
already placed under arrest, the marginal gain to the tipster in terms of the
increased indignity, invasion of privacy, or annoyance factor is substantially
diminished. Thus, in examining the protective sweep that took place in this case,
we have no need to determine whether the evidence would be sufficient to justify
an investigatory detention or search.
C.
Let us turn, then, to the anonymous tip in Mr. Hauk’s case. The tip
contained four different types of information: (1) identification of Mr. Hauk as a
parole violator with outstanding warrants, together with his address; (2)
information that he sleeps during the day and has no dogs; (3) information
regarding the whereabouts in the house of drugs, drug sales equipment (scales),
and guns; and (4) information that he has an associate named “Spencer” who
drives a red Chevy Astro van. 1
1
The tip is ambiguous regarding which of the two men, Hauk or Spencer,
drives the van, but because the preceding sentence in the tip sheet refers to
Spencer, it is more likely (and certainly objectively reasonable to assume) that the
“he” in the next sentence refers to Spencer.
16
The first category of information—identification of Mr. Hauk as a parole
violator, and his address—is not precisely “predictive” information, but it
indicates more than casual observation. General information, such as the
suspect’s address or the make of the suspect’s vehicles, “is clearly insufficient for
probable cause or even reasonable suspicion.” United States v. Jenkins, 313 F.3d
549, 555 (10th Cir. 2002). As we observed in United States v. Tuter, “Almost
anyone can describe the residents of, and vehicles at, a particular home without
having any special knowledge of what goes on inside the home.” 240 F.3d at
1297. But knowledge that Mr. Hauk was a parole violator with outstanding
warrants suggests something more than casual observation by a member of the
general public. To be sure, without remarkable exertion, a tipster might well
learn of Mr. Hauk’s status as a parolee. See Kansas Department of Correction,
Kansas Adult Supervised Population Electronic Repository, at
http://docnet.dc.state.ks.us (Offender Search). But knowledge of parole
violations and outstanding warrants is more difficult to come by, in the absence of
acquaintance with the suspect and more intimate familiarity with his affairs. The
police corroboration of this information therefore provides some basis for judging
the credibility and reliability of the tip.
The second category of information, that Mr. Hauk sleeps during the day
and has no dogs, is “predictive” both in the ordinary sense (it is a prediction that
17
during the day, Mr. Hauk will be sleeping and will be unaccompanied by man’s
best friend) and in the more general sense that it is information unlikely to be
known by the general public. White, 496 U.S. at 332; Gates, 462 U.S. at 245.
The information was corroborated when the officers arrived during the day and
were met at the door, several minutes after they knocked, by Mr. Hauk clad only
in his boxer shorts, with no dog in evidence. His state of undress supported a
reasonable (though of course not certain) inference that he had been in bed. This
corroboration thus lends a bit more weight to the tip—but not much, since the
facts of diurnal sleep and doglessness are not uncommon and do not require much
in the way of observation.
The third category of information—location of drugs, drug scales, and
guns—is predictive in the sense of not being known to the general public, and
would be highly supportive of the reasonableness of the protective sweep if it
were reliable. But this portion of the tip was completely uncorroborated. We do
not find that the corroboration of the rest of the tip was sufficiently powerful to
carry with it a reasonable basis for accepting the credibility and veracity of this
portion. On the other hand, the information is highly detailed, reporting the
presence of drugs “in the ceiling, hall closet by the bedroom, night stand next to
the bed and in a duffle bag in the closet,” along with “scales in the bedroom.”
Moreover, the tipster claimed to be reporting first hand information, which he
18
gleaned from being inside the house in the course of purchasing drugs from Mr.
Hauk. (“Caller states that he has been in the home and does get drugs from him.”)
This degree of detail, claim of first-hand knowledge, and information about the
circumstances of learning the information, lends weight to the credibility of the
tip. See Gates, 462 U.S. at 234. These factors distinguish the tip in question
from the anonymous calls in J.L. and White, which did not indicate the basis of
the informant’s knowledge. In this case, however, we need not resolve whether
this portion of the tip, in isolation, could support reasonable suspicion. We find
only that the totality of the circumstances supports the reasonableness of the
protective sweep.
The fourth category of information in the tip—that Mr. Hauk had an
associate named “Spencer” who drove a red vehicle—is ultimately the most
important. To be sure, for an anonymous tip to support reasonable suspicion, the
tip must “be reliable in its assertion of illegality, not just in its tendency to
identify a determinate person.” J.L., 529 U.S. at 272 (emphasis added). There is
nothing illegal in the State of Kansas about having an associate named Spencer,
even assuming he drives a red car. But in conjunction with other events that took
place the day of the arrest, this information powerfully supported an inference
that there was another man in the house who might have reason to assist Mr. Hauk
in resisting arrest, and pose a danger to the officers.
19
On the day of the arrest, as they approached Mr. Hauk’s residence, the
police had not only the knowledge of the allegations in the anonymous tip, but
also an arrest warrant for Mr. Hauk for violating parole on a drug trafficking
conviction. That gave the Task Force officers reason to suspect that Mr. Hauk
might be involved with illegal drugs, and that he might be less than exemplary in
his compliance with the lawful commands of law enforcement. Unlike some other
crimes, involvement in the drug trade is not uncommonly associated with
violence. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 1002–03 (1991) (citing
studies demonstrating “a direct nexus between illegal drugs and crimes of
violence”). This would put any reasonably prudent police officer, executing an
arrest warrant for a drug offense parole violator, on his guard.
While they were waiting outside the residence, a red Camaro pulled into
Mr. Hauk’s driveway. The driver disappeared, perhaps into the house, though the
officers could not see where he had gone. The unidentified driver’s apparent
entry into Mr. Hauk’s house without knocking or requiring permission to enter
gave the police reason to think that the driver was either the householder or a
close associate, perhaps the runner. When Mr. Hauk appeared at the door shortly
thereafter in boxer shorts, it seemed to confirm that the man who emerged from
the vehicle was someone other than Mr. Hauk, on the assumption that it is unusual
for a person to enter his house and immediately disrobe. The police therefore had
20
a reason to suspect that there was an unidentified person lurking somewhere in
the house.
Mr. Hauk’s effort to retreat into his house reinforced the officers’
reasonable suspicion that the situation was dangerous. At the very least, forcible
resistance by the subject of a warrant justifies an officer’s suspicion that the
arrestee has not given up on crime. Cf. Illinois v. Wardlow, 528 U.S. 119 (2000)
(holding that the defendant’s unprovoked flight from police officers in a high
crime area created reasonable suspicion for a Terry stop). Depending on the facts
known to the officer, it may suggest a great deal more. Based on the tip and the
warrant, the officers had reason to suspect that Mr. Hauk was selling illegal
drugs. Mr. Hauk’s attempt to slam the door on the officers gave them reason to
suspect that something was going on in the house that Mr. Hauk did not want
them to see and that any third party in the house might also resist their efforts to
serve the warrant.
Viewed as a totality, the facts in this case supported each element required
to justify a protective sweep. When the Task Force officers knocked on Mr.
Hauk’s door, they knew that (1) Mr. Hauk violated parole on a narcotics
trafficking conviction; (2) an anonymous informant claimed that Mr. Hauk was
selling drugs out of his house, that he had a runner named Spencer, and that he
had guns in the house; (3) an unidentified individual had recently parked in the
21
driveway and might have entered the house, and (4) Mr. Hauk attempted to slam
the door on the officers.
Police are predisposed by their instinct for self-preservation to assume that
an unknown situation is dangerous. The Fourth Amendment limits officers’
ability to act on this assumption, but we must take care not to restrict officers’
common-sense precautions, particularly in cases involving reasonable suspicion.
As the Supreme Court has frankly stated,
Articulating precisely what “reasonable suspicion” and “probable
cause” mean is not possible. They are common-sense, nontechnical
conceptions that deal with the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act. . . . They are . . . fluid concepts that take their
substantive content from the particular contexts in which the
standards are being assessed.
Ornelas, 517 U.S. at 695 (internal citations omitted). Reasonable suspicion
requires a showing “considerably less than preponderance of the evidence.”
Wardlow, 528 U.S. at 123. On the facts of this case, a reasonable officer would
take precautions to make sure that no hidden threat was lurking in the house.
Mr. Hauk argues that the officers should have conducted a more thorough
investigation to corroborate the tip before they arrested him. The officers might,
for example, have waited to see whether Mr. Hauk had a stream of short-term
visitors consistent with a retail drug operation. But the principle behind this
argument would require officers to delay service of a valid arrest warrant
22
whenever circumstances suggest that a protective sweep might be necessary.
Efforts to enforce the Fourth Amendment through deterrence of unreasonable
police behavior should be tailored not to interfere with the proper execution of
police functions. See United States v. Calandra, 414 U.S. 338, 347 (1974);
Johnson, 364 F.3d at 1190 (citing cases). Restricting officers from executing a
valid arrest warrant on the possibility that they might discover evidence in the
house would deter reasonable police behavior.
We thus conclude that the facts known to the Task Force officers created a
reasonable suspicion that a dangerous third party was inside Mr. Hauk’s house at
the time of the arrest. The measures taken in this case were therefore reasonable,
and the district court properly denied Mr. Hauk’s motion to suppress.
III.
Mr. Hauk filed a supplemental brief arguing that his sentence was invalid
under Blakely v. Washington, 124 S.Ct. 2531 (2004). Considering his argument in
light of United States v. Booker, 125 S. Ct. 738 (2005), we vacate Mr. Hauk’s
sentence and remand to the district court for resentencing.
Booker extended the Sixth Amendment holding of Blakely, concluding that
in the context of the mandatory federal Sentencing Guidelines, “[a]ny fact (other
than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict
23
must be admitted by the defendant or proved to a jury beyond a reasonable
doubt.” 125 S. Ct. at 756. To remedy this constitutional infirmity, the Court
severed two provisions of the Sentencing Reform Act of 1986: 18 U.S.C. §
3553(b)(1), which required courts to impose a sentence within the applicable
Guidelines range; and 18 U.S.C. § 3742(e), which established standards of
appellate review, including de novo review of departures from the Guidelines
range. See Booker, 125 S. Ct. at 764. Booker makes the Guidelines effectively
advisory. Courts must consider the Guidelines in addition to other sentencing
factors, see 18 U.S.C. § 3553(a), but they are not required to impose a sentence
within the applicable Guidelines range, and sentences will be reviewed for
reasonableness. See Booker, 125 S. Ct. at 765–66.
Mr. Hauk pleaded guilty to count two of the indictment, which charged
possession with intent to distribute 768.6 grams of cocaine. At his sentencing
hearing, the government argued that Mr. Hauk was responsible for crack cocaine
and a firearm discovered in the bedroom occupied by Spencer Starns (the
“Spencer” who played a role in the preceding section of this opinion). Mr. Hauk
contested the government’s evidence at sentencing, arguing that the drugs and
firearm found in Mr. Starns’s room should not be attributed to him. The district
court overruled Mr. Hauk’s objections after an evidentiary hearing, concluding
that the crack cocaine was attributable to Mr. Hauk under a theory of jointly
24
undertaken criminal activity. See United States v. Mendez-Zamora, 296 F.3d
1013, 1020 (10th Cir. 2002). With respect to the firearm, the court recognized
that Mr. Hauk did not directly possess the gun, but it determined that the offense
conduct still satisfied the requirements of U.S.S.G. § 2D1.1(b)(1). To reach this
conclusion, the district court found that Mr. Hauk could not show that a
connection between the drugs and the weapon was clearly improbable. See id.
Application Note 3; United States v. Humphrey, 208 F.3d 1190, 1210-11 (10th
Cir. 2000) (explaining the application of U.S.S.G. § 2D1.1(b)(1)).
The district court determined Mr. Hauk’s base offense with reference to all
of the drugs discovered in his house. See U.S.S.G. § 2D1.1, Application Note 12
(“Types and quantities of drugs not specified in the count of conviction may be
considered in determining the offense level.”). The total quantity of drugs,
including those discovered in Mr. Starns’s room, resulted in a base offense level
of 30. See id. § 2D1.1(b)(5). The firearm in Mr. Starns’s room increased the
base offense by two levels, to 32. See id. § 2D1.1(b)(1). The district court
reduced the adjusted offense level by three points for acceptance of responsibility,
see U.S.S.G. § 3E1.1(a), (b), resulting in a total offense level of 29, which
indicated a sentencing range of 140 to 175 months imprisonment. The court
sentenced Mr. Hauk to 140 months imprisonment, the minimum sentence in that
range. Based solely on the drug quantities admitted by the defendant, and without
25
an adjustment for acceptance of responsibility, Mr. Hauk’s base offense level
would have been 26, see id. § 2D1.1(c)(7), and his sentencing range would have
been 110 to 137 months. See id. § 5A. Based on the admitted quantities, and
giving Mr. Hauk credit for acceptance of responsibility, the offense level would
be 23, and the sentencing range would be 84 to 105 months. See U.S.S.G. §
3E1.1(a), (b); id. ch. 5, pt. A. Either way, Mr. Hauk’s sentence was in excess of
the sentencing range based on the admitted facts.
Because Mr. Hauk did not raise his Blakely challenge in the district court,
we review for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727, 732
(10th Cir. 2005) (en banc). To show plain error, Mr. Hauk must establish three
elements: (1) the district court committed error; (2) the error was plain or
obvious; and (3) the error affected his substantial rights. United States v. Cotton,
535 U.S. 625, 631 (2002). If these conditions are met, the Court may exercise its
discretion to correct the error if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id. at 631–32. We conduct plain-error
analysis “less rigidly when reviewing a potential constitutional error.” United
States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005) (quoting United States v.
James, 257 F.3d 1173, 1182 (10th Cir. 2001)).
It is now well established that constitutional Booker error satisfies the first
two criteria for plain error review. We turn, then, to the third and fourth.
26
A. Substantial Rights
To violate a defendant’s substantial rights, “the error must have been
prejudicial: It must have affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. at 725, 734 (1993). The party that failed to raise
the issue below bears the burden of establishing prejudice. Gonzalez-Huerta, 403
F.3d at 733. The defendant must show “a reasonable probability that, but for [the
error claimed], the result of the proceeding would have been different.” United
States v. Dominguez Benitez, 124 S. Ct. 2333, 2339 (2004); see also United States
v. Magleby, 241 F.3d 1306, 1317 (10th Cir. 2001) (“[A]n error affects a substantial
right when it has a substantial influence on the outcome or leaves one in grave
doubt as to whether it had such effect.”) (quotation marks omitted).
In a case involving constitutional Booker error, a defendant can show an
effect on his substantial rights in at least two ways. First, the defendant may be
able to demonstrate “a reasonable probability that a jury applying a reasonable
doubt standard would not have found the same facts that the judge found by a
preponderance of the evidence.” See Dazey, 403 F.3d at 1175. Appellate courts
should therefore review the district court’s factual analysis at sentencing and
determine whether the evidence presented by the defendant could call the district
court’s conclusions into reasonable doubt. See id. Second, a defendant may be
able to show a reasonable probability that consideration of the sentencing factors
27
in § 3553(a) would have led the district court to impose a sentence outside the
applicable Guidelines range. See, e.g., United States v. Trujillo-Terrazas, ___
F.3d ___, 2005 WL 880896 *4 (10th Cir. April 13, 2005). 2
The Guidelines require sentencing courts to consider “relevant conduct” at
sentencing, see U.S.S.G. § 1B1.3, including uncharged drug quantities “if they are
part of the same conduct for which the defendant was convicted.” United States v.
Mendez-Zamora, 296 F.3d at 1020 (quoting United States v. Washington, 11 F.3d
1510, 1516 (10th Cir. 1993)). After considering the evidence submitted at
sentencing, the district court found, by a preponderance of the evidence, that Mr.
Hauk and Mr. Starns jointly sold illegal drugs and that the presence of crack
cocaine in Mr. Starns’s room was reasonably foreseeable to Mr. Hauk.
Accordingly, the district court attributed the crack cocaine and the firearm to Mr.
Hauk for sentencing purposes. See id. 296 F.3d at 1020 (“Relevant conduct
includes reasonably foreseeable acts of co-conspirators in furtherance of their
conspiracy.”) (citing U.S.S.G. § 1B1.3(a)(1)(B)). The finding of a joint criminal
enterprise was important to both of these enhancements: without this finding there
2
The circumstances may also indicate that a lower sentence is particularly
unlikely, for example, when the court imposes a sentence at the top of the
Guidelines range. Cf. United States v. Riccardi, ___ F.3d ___, 2005 WL 896430
at *20 (10th Cir. April 19, 2005) (finding a constitutional Booker error to be
harmless because the court’s factual findings were supported by overwhelming
evidence and the court sentenced at the top of the Guidelines range).
28
would be no support for the drug quantity enhancement, and the firearm
enhancement would be questionable. 3
The district court relied on two pieces of evidence to support the finding of
jointly undertaken criminal activity: the anonymous tip and Mr. Hauk’s testimony
that there was, according to the court, a “business relationship” between Mr. Hauk
and Mr. Starns. R. Vol. IV 50. This evidence is sufficiently equivocal that there
is a reasonable probability that a jury using a reasonable doubt standard would find
that Mr. Hauk’s possession of cocaine was not part of a joint criminal enterprise
with Mr. Starns. The anonymous tip contained some information that turned out to
be generally correct, such as the presence of powder cocaine, crack cocaine, and
marijuana in the house and the lack of any dogs, but some of the specific
information in the tip, such as the allegation that Mr. Hauk stored drugs in the
ceiling, was not corroborated. The only elements of the tip suggesting joint
criminal activity were the tipster’s statement that Mr. Hauk sold crack cocaine and
his statement that Mr. Starns was a “runner” for Mr. Hauk. While corroboration of
some information in the tip may be sufficient to conclude, under a preponderance
of the evidence standard, that Mr. Starns and Mr. Hauk jointly operated an illegal
3
It is unclear whether the district court believed the firearm was
attributable to Mr. Hauk solely because of the crack cocaine found in Mr. Starns’s
room or if the district court believed that the firearm was independently
attributable to Mr. Hauk based on its presence in his home.
29
drug enterprise, we question whether a jury would come to the same conclusion
using the more onerous reasonable doubt standard.
Mr. Hauk’s testimony also provides an uncertain basis for the finding of
joint drug sales activity. For example, Agent Volanti testified that Mr. Hauk told
him that “he had to go through his friend Spence” and that he “would use Spence .
. . as the middle man.” R. Vol. IV 14–15. This vague reference is the only
suggestion that Mr. Starns acted as a middle man at or near the time of the arrest.
In the full context of the interview, however, it appears that Mr. Hauk could have
been describing his introduction to suppliers through Mr. Starns in the past rather
than a continuing pattern of activity. Mr. Hauk acknowledged that Mr. Starns had
introduced him to suppliers in the past, but he testified that the most recent
introduction occurred approximately a year before the arrest. While this admission
may make it more likely than not that Mr. Starns played a joint role in “the
commission of the offense of conviction,” U.S.S.G. § 1B1.3(a)(1), the connection
between this admission and the district court’s conclusion is sufficiently distant in
time that a fact-finder applying a reasonable doubt standard might not make the
same determination. Cf. United States v. Mozee, ___ F.3d ___, 2005 WL 958498
at *8 (10th Cir. April 27, 2005) (concluding that the evidence was sufficient to
satisfy a preponderance standard, but there was a reasonable probability that a jury
would not come to the same conclusion under a reasonable doubt standard).
30
Moreover, the district court did not discuss several pieces of evidence that
undermine the conclusion that he and Mr. Starns were selling illegal drugs
together. For example, there is evidence that the door to Mr. Starns’s room was
locked, an assertion which, if true, would support the theory that his and Mr.
Starns’s dealings were independent. During his testimony, Mr. Hauk discussed a
photograph of the arrest scene and indicated that the police broke down the door to
Mr. Starns’s room, which supports his claim the door was locked. In addition, Mr.
Hauk testified that Mr. Starns had been staying with him for only three weeks to a
month at the time of his arrest. He admitted that he and Mr. Starns knew many of
the same suppliers, but he insisted they did not purchase large quantities of drugs
together and Mr. Starns did not bring people to his house to buy drugs.
Perhaps most significantly, while readily admitting to possession of all other
drugs in the house, Mr. Hauk consistently denied any connection to crack cocaine,
which was the substance found in the suitcase in Mr. Starns’s room. Agent
Volanti testified that on the day of the arrest, he mistook some of the cocaine that
was plainly visible in Mr. Hauk’s house for crack. When he mentioned to Mr.
Hauk that there was a lot of crack in the house, Mr. Hauk told him that it was only
cocaine and that he did not sell crack. R. Vol. IV 11. In a post-arrest interview
with Agent Volanti, Mr. Hauk again denied selling crack cocaine. Id. at 18–19.
The government suggests that the crack cocaine belonged to Mr. Hauk because the
31
suitcase in Mr. Starns’s room was very similar to a suitcase containing marijuana
that was found in his own room. The record does not indicate how similar the
suitcases were, but without some specific reason to believe that they were anything
more than two ordinary black suitcases, it is difficult to see how the resemblance
supports the inference.
Using the “less rigid” approach required in analysis of constitutional plain
errors, the cumulative effect of this conflicting evidence leads us to conclude that
there is a reasonable probability that a fact-finder using a reasonable doubt
standard would not reach the same conclusion as the district court. Accordingly,
we hold that the district court’s Sixth Amendment error affected Mr. Hauk’s
substantial rights.
B. The Integrity, Fairness, or Public Reputation of Judicial Proceedings
An appellate court has discretion to correct an error not preserved at trial
when the error affects the integrity, fairness, or public reputation of judicial
proceedings. Gonzalez-Huerta, 403 F.3d at 736. This inquiry is independent from
our analysis of whether a plain error affects a defendant’s substantial rights. Id.
The burden to satisfy this fourth prong of plain error analysis is on the defendant.
See Olano, 507 U.S. at 734. This Court has identified three “non-exclusive”
factors that guide the exercise of this discretion to correct constitutional Booker
errors that are plain. United States v. Clifton, ___ F.3d ___, 2005 WL 941581 at
32
*6 (10th Cir. April 25, 2005). First, if the underlying right is constitutional, we
are more likely to conclude that a remand would be appropriate. See Dazey, 403
F.3d at 1178; see also Gonzalez-Huerta, 403 F.3d at 743 (Ebel, J., concurring in
part, dissenting in part) (arguing that failing to correct a constitutional plain error
is “much more likely to cast judicial proceedings in disrespect”). Second, if the
defendant challenged the factual basis of the judicial findings that affected his
substantial rights, this weighs in favor of a remand. Dazey, 403 F.3d at 1178.
Third, the magnitude of the difference between the sentence authorized by a jury’s
verdict or a plea of guilty and the sentence permitted after mandatory judicial fact
finding affects whether or not we should correct the error. Id. at 1178-79.
All three of these factors suggest that a remand would be appropriate in Mr.
Hauk’s case. First, the error in his sentence is the type of constitutional error
identified by the Booker merits majority as a violation of a defendant’s Sixth
Amendment rights. To leave an erroneous sentence intact after acknowledging
that it was calculated through constitutionally suspect means could reflect poorly
on the public reputation of the judiciary. Second, Mr. Hauk vigorously contested
the factual basis of the enhancements that increased his sentence. Cf. United
States v. Maldonado-Ramires, 384 F.3d 1228, 1231 n.1 (10th Cir. 2004) (holding
that a Blakely violation is not plain error when the defendant did not dispute the
court’s factual findings, even if the court had discretion to reduce the sentence).
33
Where a defendant acquiesces to the district court’s findings of fact that support
an enhancement with little or no objection, leaving the resulting plain error
uncorrected poses little risk to the fairness or integrity of judicial proceedings.
United States v. Magallanez, No. 04-8021 (10th Cir. May 17, 2005). However,
when a defendant vigorously contests a factual finding that leads to a mandatory
enhancement there is a much stronger argument for exercising our discretion to
correct the error. Mr. Hauk’s emphatic argument, that the offense to which he
pleaded guilty was not part of a joint criminal enterprise with Mr. Starns, weighs
in favor of remand.
Finally, we consider whether the mandatory application of judge-found facts
substantially increased Mr. Hauk’s sentence. This depends, in part, on whether we
give Mr. Hauk credit for acceptance of responsibility, as the district court did.
This Circuit has not decided whether adjustment for acceptance of responsibility is
deemed to be judicial fact-finding for purposes of Booker; however, the outcome
of Mr. Hauk’s case does not depend on the answer to that question. With or
without credit for acceptance of responsibility, the judge-found facts violated Mr.
Hauk’s Sixth Amendment rights, and they exposed him to a substantial increase in
punishment.
The effect of the judge-found facts was to increase the bottom of the
applicable sentencing range by either 30 or 56 months, depending on whether Mr.
34
Hauk is credited with acceptance of responsibility. While these increases are not
as large as the ten years the Supreme Court called “very serious”in Booker, 125
S.Ct. at 751, this is a substantial amount of prison time. Cf. Dazey, 403 F.3d at
1179 (calling a 20-level enhancement based on judicial fact finding “sizable”).
Moreover, the district court sentenced Mr. Hauk at the bottom of the Guidelines
range, which suggests that had the district court fully considered the tenuous
nature of the evidence supporting the enhancements, Mr. Hauk might not have
received these two and a half to almost five additional years of incarceration. Cf.
United States v. Lawrence, ___ F.3d ___, 2005 WL 906582 at *13 (10th Cir. April
20, 2005) (citing the district court’s imposition of a sentence two months above
the bottom of the Guidelines range as evidence that constitutional Booker error
had no effect on the defendant’s sentence). We therefore conclude that failing to
correct the plain error in Mr. Hauk’s sentence would affect the integrity, fairness,
or public reputation of judicial proceedings, and we exercise our discretion to
remand his case for resentencing.
In doing so, we do not mean to suggest that the district court ought to reach
a different conclusion on remand, but only that, in light of Booker, it should have
the opportunity to resentence Mr. Hauk under the new, non-mandatory Guidelines
regime.
35
V.
For the reasons stated above, we conclude that the arresting officers had
reasonable suspicion sufficient to justify the protective sweep. The district court’s
denial of Mr. Hauk’s motion to suppress is therefore AFFIRMED. Reviewing Mr.
Hauk's claim of constitutional sentencing error under Rule 52(b), we VACATE the
sentence and REMAND for further proceedings consistent with this opinion.
36
No. 04-3113, United States v. Hauk
MURPHY, Circuit Judge, concurring in the judgment.
I concur in the judgment but write separately to express my dissent to the
approach taken by the majority in Part IIA. Like the majority, I question the
constitutionality of the alleged policy of the Kansas City Police Department to
conduct a sweep of every residence when executing an arrest warrant. That issue,
however, is not before this court because Hauk does not raise it on appeal. Neither
does Hauk argue that the officers’ professional judgment should be accorded
something less than “due weight” because they acted pursuant to the alleged policy
when they conducted the sweep. Although the majority purports to resolve both of
these legal questions, it does so by engaging in fact-finding. Ultimately, however,
the majority resolves this case without applying the rules it adopts, rendering the
entire discussion of the issue dicta.
During the hearing on Mr. Hauk’s suppression motion, Detective Shomin
testified that it was the policy of the Kansas City Police Department to routinely
conduct a protective sweep when executing an arrest warrant. When the district
court ruled on the motion, however, it clearly and repeatedly stated that its ruling
was not based on the alleged policy,
[T]here [were] statements made to the court in regards to the evidence
specifically as they related to Detective Shomin’s testimony in regards
to whether or not there is some type of official or unofficial pattern or
practice of the Kansas City, Kansas Police Department when they
execute their arrest warrant. I would tell you, Mr. Hauk and Mr.
Harris, that is not the issue before the court in this case . . . . So, the
issue about this pattern and practice, this blanket exception is not
before the court. The court is not going to rule one way or the other
in regards to that pattern or practice legality.
Consistent with these statements, the court resolved the motion by concluding that
the facts presented, together with the reasonable inferences that could be drawn
from those facts, provided justification for the protective sweep. Accordingly, the
court made no finding that a policy or practice exists, let alone a finding that the
officers acted pursuant to any such policy.
Hauk focuses his appellate argument on his position that no specific,
articulable facts existed to support the protective sweep. The bulk of his argument
is directed toward challenging the officers’ reliance on the information contained
in the anonymous tip which he asserts contains no predictive information that
could be corroborated. As the majority points out, he also includes one sentence
in his appellate brief, arguing that the sweep was therefore improper because it
was based solely on “‘generalizations by [the officers] about drug offenders, their
use of weapons, and their use of other people.’” Majority Opinion at 6-7 (quoting
Appellant’s Br. at 13-14). He does not argue or provide any support for the
position that the alleged policy is unconstitutional or that the professional
judgment of the officers is not entitled to “due weight” because the sweep was
conducted pursuant to the alleged policy. See Phillips v. Calhoun, 956 F.2d 949,
-2-
953-54 (10th Cir. 1992) (holding that an appellate argument must be supported by
legal argument and authority). He, instead, makes the broader argument that the
evidence obtained from the search should be suppressed because “the search was
based on the unparticularized suspicion and hunch that because the warrant was
for a parole violation for a narcotics offense, someone else might be present in the
house.” Appellant Br. at 13.
In resolving this appeal the majority first addresses the propriety of the
alleged “practice” testified to by Detective Shomin. Recognizing that the
government did not base its argument on the alleged policy, the majority concludes
that “[i]f the government were relying on the validity of the Kansas City policy to
support this protective sweep, or if the subjective motivations of the officers in
undertaking the sweep were controlling, we would thus have to reverse this
conviction.” Majority Opinion at 9 (emphasis added). It then proceeds to find
both that a policy or practice actually exists and that “there is every reason to
believe that the police engaged in the sweep of Mr. Hauk’s residence not because
they believed they had reasonable suspicion of danger, but because they were
executing ‘general policy’ of conducting protective sweeps in the course of all
arrests within a home.” Id. This appellate fact-finding is wholly inappropriate and
contrasts sharply with the approach taken by the district court which declined to
make any factual findings with respect to the alleged practice. Armed with these
-3-
findings, the majority then embarks on an analysis of the weight to be given the
officers’ professional experience and judgment in light of their reliance on the
alleged policy. Although the majority concludes that the officers’ judgment is not
entitled to “due weight,” it fails to articulate exactly the weight it should be given.
But this omission is of no consequence, since the majority then resolves the issue
before this court without applying the new rule it needlessly crafts.
Because I agree with the majority’s ultimate conclusion, reached without
any reliance on the dicta, that “the facts in this case supported each element
required to justify a protective sweep,” I concur in the judgment.
-4-
United States v. Hauk
Court: Court of Appeals for the Tenth Circuit
Date filed: 2005-06-24
Citations: 412 F.3d 1179
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