United States v. Lawlor

United States Court of Appeals
For the First Circuit

No. 04-2044

UNITED STATES,

Appellee,

v.

CHRISTOPHER JOSEPH LAWLOR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, U.S. District Judge]

Before

Howard, Circuit Judge,
Cyr, Senior Circuit Judge,
and Stahl, Senior Circuit Judge.

Brett D. Baber, with whom Law Office of Brett D. Baber, P.A.,
was on brief for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.

April 27, 2005
 STAHL, Senior Circuit Judge. On the morning of May 29,

2003, Maine State Police Trooper Thomas Fiske ("Fiske") went to the

residence of Appellant Christopher Lawlor ("Lawlor") to investigate

a report of a gunshot and an altercation between two men at the

house, one of whom proved to be Lawlor. After arriving at the

scene and subduing the two men, Fiske conducted a warrantless

search of the residence and found a shotgun. Lawlor was then

formally arrested and later charged with making an unregistered,

short barreled shotgun, in violation of 26 U.S.C. §§ 5861(f), 5871,

and possession of such a shotgun, in violation of 26 U.S.C. §§

5861(d), 5871. Subsequently, Lawlor filed a motion to suppress the

shotgun. Based on a stipulated record (the parties having agreed

that an evidentiary hearing was not necessary), the magistrate

judge assigned to the case recommended that the district court

allow the motion. After the government objected to the

recommendation, the district court decided to hold an evidentiary

hearing. Following that hearing, the district court rejected the

recommendation and denied the motion. Lawlor now seeks review of

the district court's decision to (1) conduct an evidentiary hearing

and (2) deny his motion to suppress. Finding no error, we affirm.

I. Background

At approximately 7:00 a.m. on May 29, 2003, Andrew

McLaughlin ("McLaughlin") called the Maine State Police and

reported seeing an altercation between two men and hearing a

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gunshot outside a specified residence in Enfield, Maine (the

"Lawlor residence," the "residence," or the "house"). Soon

thereafter, Fiske was ordered to travel to the Lawlor residence.

Fiske was familiar with the residence and its occupants.

In 1998 or 1999, he had arrested Lawlor's father and brother at the

residence. It was then that Fiske first encountered Lawlor.

Significantly, Fiske believed that Lawlor was living in the

residence on the date in question and that his brother also lived

there "from time to time."1 In addition, Fiske was aware that the

Maine State Police had received intelligence connecting the

residence and its occupants with illicit, drug-related activities.

And, over the years, while fulfilling his "patrol duties," Fiske

had regularly observed "individuals coming and going from th[e]

house."

When Fiske arrived at the residence, he saw Lawlor and

another man, later identified as Christopher Tomah ("Tomah"),

standing in the driveway. Fiske also saw a woman, later identified

as Ann Delaite ("Delaite"), standing in the doorway to the house.

Lawlor and Tomah were yelling at each other, and Lawlor was holding

a three-and-a-half foot long two-by-four over his shoulder and

appeared ready to strike Tomah. Fiske drew his revolver, ordered

1
All quotations in the background section of this opinion are
taken from Fiske's suppression hearing testimony.

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both men to the ground, and after they had complied, handcuffed

them. The men were visibly inebriated. Fiske did not see a gun.

At that point, a second trooper, Barry Meserve

("Meserve"), arrived at the scene. Fiske then noticed two spent

shotgun shells on the ground in front of the doorway to the

residence. Fiske asked Lawlor and Tomah for the location of the

gun. At the suppression hearing, Fiske testified that he did so

because he "was concerned that there may still [have been] an

assailant with a gun" in or around the residence. Lawlor initially

denied knowledge of any gun but, a short time later, asked Fiske to

specify the gun to which he was referring, thus implying that there

were several guns inside the house. After Fiske said that he

wanted to know the location of the gun from which the

abovementioned shells had been fired, Lawlor shrugged his

shoulders.

Fiske then went inside the house, leaving Meserve with

Lawlor and Tomah. Fiske did not have a warrant to search the

house. Upon entering the house, he walked first through the

kitchen, then the living room, and then two rooms off of the living

room. In one of the latter two rooms, he found a shotgun on the

floor in plain view. The shotgun smelled of gunpowder, an

indication that it had been fired recently. After looking into one

final room located adjacent to the room containing the shotgun,

Fiske picked up the gun and went outside.

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 As Fiske made his way through the rooms, he also noticed

a straw and a plate covered with white powder, which he believed to

be cocaine. But, at the time, Fiske seized only the shotgun.

After the search, Lawlor was formally arrested. He later

was charged in a two-count indictment. Count I alleged that he had

made an unregistered, short-barreled shotgun, and Count II charged

him with possession of the shotgun. On August 20, 2003, Lawlor

moved to suppress the shotgun on the ground that it was the product

of an unlawful, warrantless search. The district court referred

the motion to a magistrate judge for a report and recommendation.

Following the referral, the parties agreed that there was no need

for the magistrate judge to conduct an evidentiary hearing before

issuing her recommendation, and consequently, they submitted the

motion on the papers.2 On October 23, 2003, the magistrate judge

recommended that the motion be granted. The government objected to

the recommendation. Before ruling on the objections to the

magistrate judge's recommendation, the district court, acting sua

sponte and over Lawlor's objection, conducted an evidentiary

hearing. After the hearing, the district court denied the

suppression motion, finding that the search was justified under the

protective sweep and emergency doctrines.

2
The "papers" consisted of Fiske's incident report and the
affidavit in support of his request for a search warrant. (After
seizing the shotgun and arresting Lawlor, Fiske applied for a
warrant to search the entire residence.)

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 On May 17, 2004, Lawlor pleaded guilty to Count II,

reserving his right to appeal the suppression ruling. Count I was

later dismissed on the government's motion.

On appeal, Lawlor challenges both the district court's

decision to hold an evidentiary hearing on the motion to suppress

and its ultimate denial of that motion. We address the challenges

in turn.

II. Discussion

A. Evidentiary Hearing

Lawlor claims that the district court erred in conducting

an evidentiary hearing on the motion to suppress because the

parties had previously agreed that the motion was to be submitted

to the magistrate judge on the papers. We disagree.

The relevant statute, 28 U.S.C. § 636(b)(1), provides

that when a party objects to a magistrate judge's recommendation on

a matter, the district court "shall make a de novo determination of

. . . [the] recommendation[]." The district court "may accept,

reject, or modify, in whole or in part, the . . . recommendation[]

made by the magistrate judge." § 636(b)(1). And, in conducting

its de novo review, the district court "may . . . receive further

evidence [on] the matter." § 636(b)(1).

Thus, as a general rule, a district court is permitted to

conduct an evidentiary hearing when reviewing a magistrate judge's

recommendation on a motion. See United States v. Raddatz, 447 U.S.

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667, 676 (1980); Stauble v. Warrob, Inc., 977 F.2d 690, 695-96 n.7

(1st Cir. 1992). The issue here, however, is whether the fact that

the parties agreed that the magistrate judge could decide the

motion to suppress on the papers precluded the district court from

later conducting an evidentiary hearing. It did not. The district

court had a statutory obligation to "make a de novo determination"

of the magistrate judge's recommendation with respect to the motion

and, in doing so, was expressly authorized to "receive further

evidence [on] the matter." § 636(b)(1).

The two cases that Lawlor cites to support his position,

United States v. McGill, 952 F.2d 16 (1st Cir. 1991), and United

States v. Shapiro, 879 F.2d 468 (9th Cir. 1989), are easily

distinguished from the case at hand, as each involved pretrial

evidentiary stipulations entered into before a district court;

neither involved a district court's review of a magistrate judge's

recommendation in a situation where the parties had agreed to limit

the evidence before the magistrate. Given that such review is de

novo, the binding effect of an evidentiary agreement entered into

before a magistrate judge is not comparable to that of one entered

into before a district court.

B. Motion to Suppress

Having determined that the district court did not err in

conducting an evidentiary hearing on the motion to suppress, we now

consider whether it erred in denying that motion. Our review of

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the denial of the motion to suppress is bifurcated. United States

v. Charles, 213 F.3d 10, 18 (1st Cir. 2000). We review de novo the

district court's ultimate legal decision to deny the motion. Id.

But, we review its factual findings only for clear error. Id.

Lawlor argues that the district court should have

suppressed the shotgun because the warrantless search of his

residence was unlawful. The government, however, insists that the

district court correctly found that the search was justified

pursuant to both the protective sweep and emergency doctrines.

Because we believe that the search was a lawful protective sweep,

we need not, and do not, consider the applicability of the

emergency doctrine.3

For a search to be lawful, it must be reasonable. See

U.S. Const. amend. IV. And, "[a] warrantless search of a private

residence is presumptively unreasonable." United States v. Tibolt,

72 F.3d 965, 968 (1st Cir. 1995). There are, however, exceptions

to this general rule.

One exception, announced by the Supreme Court in Maryland

v. Buie, 494 U.S. 325 (1990), is that following an in-home arrest,

police officers may conduct a protective sweep of the premises if

"articulable facts which, taken together with the rational

inferences from those facts, would warrant a reasonably prudent

3
For an account of the emergency doctrine, see United States
v. Beaudoin, 362 F.3d 60, 66 (1st Cir. 2004).

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officer in believing that the area to be swept harbors an

individual posing a danger to those on the arrest scene." Id. at

334. Such a search is limited to "a cursory inspection of those

spaces where a person may be found." Id. at 335.

Buie did not address whether a protective sweep can

follow an arrest made just outside of the home (the situation we

have here), and we have not previously spoken on the issue.

Nevertheless, a number of our sister circuits allow protective

sweeps in this situation. See, e.g., United States v. Cavely, 318

F.3d 987, 995-96 (10th Cir. 2003); United States v. Wilson, 306

F.3d 231, 238 (5th Cir. 2002); United States v. Colbert, 76 F.3d

773, 776-77 (6th Cir. 1996); United States v. Henry, 48 F.3d 1282,

1284 (D.C. Cir. 1995); United States v. Oguns, 921 F.2d 442, 446

(2d Cir. 1990). In announcing the protective sweep doctrine in

Buie, the Supreme Court found significant the "risk of danger in

the context of an arrest in the home" due primarily to the reality

that there may be "unseen third parties in the house." 494 U.S. at

333, 336. We think that an arrest that occurs just outside the

home can pose an equally serious threat to arresting officers as

one that occurs in the home. Therefore, we accept the position

that a protective sweep may be conducted following an arrest that

takes place just outside the home, if sufficient facts exist that

would warrant a reasonably prudent officer to fear that the area in

question could harbor an individual posing a threat to those at the

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scene.4 See Colbert, 76 F.3d at 776-77 ("[T]he fact that the

arrest takes place outside rather than inside the home affects only

the inquiry into whether the officers ha[d] a reasonable

articulable suspicion that a protective sweep [wa]s necessary by

reason of a safety threat."); Henry, 48 F.3d at 1284 ("That the

police arrested the defendant outside rather than inside his

dwelling is relevant to the question of whether they could

reasonably fear an attack by someone within it.").

Given the circumstances with which the officers in this

case were confronted, we think that Fiske's entry into and cursory

inspection of the residence was reasonable. A reasonably prudent

officer in Fiske's position would have been warranted in fearing

that the residence harbored an individual posing a danger to those

at the scene.5 Before Fiske arrived at the house, he was told that

4
We also note that the fact that a formal arrest takes place
after a protective sweep is not determinative. This is because
"whether a formal arrest occur[s] prior to or follow[s] 'quickly on
the heels' of [a] challenged search does not affect the validity of
the search so long as . . . probable cause [to arrest] existed
prior to the search." United States v. Bizier, 111 F.3d 214, 217
(1st Cir. 1997) (quoting Rawlings v. Kentucky, 448 U.S. 98, 111
(1980)). Thus, here, it is immaterial that Lawlor was not formally
arrested until after the sweep because there was probable cause to
arrest prior to the sweep and the arrest occurred immediately after
the sweep.
5
The fact that the sweep revealed that there was no person
inside the house has no bearing on whether Fiske was justified in
conducting the sweep in the first place. See Buie, 494 U.S. at
335-36 ("The sweep lasts no longer than is necessary to dispel the
reasonable suspicion of danger . . . ." (emphasis added)); Henry,
48 F.3d at 1284 ("While it is true that the officers could not be
certain that a threat existed inside the apartment, this does not

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there had been a report of a gunshot at the scene. Also, he

believed that Lawlor and his brother lived in the house and that

the house and its occupants were involved in illegal, drug-related

activities. And, over the years, Fiske had routinely observed

"individuals coming and going from th[e] house." Upon his arrival,

Fiske found two drunken combatants--Lawlor and an unidentified man,

an unidentified woman, and spent shotgun shells outside the house.

Significantly, Fiske did not observe the gun from which the shells

had been discharged, had no idea who had fired the gun, knew that

the unidentified combatant was not Lawlor's brother, and was

positioned (along with the combatants and Meserve) just outside the

house on its driveway--an area vulnerable to attack from someone

inside the house. What is more, when Fiske asked Lawlor for the

location of the gun that had produced the shells, Lawlor shrugged

his shoulders. Under these circumstances, Fiske was justified in

entering the residence and conducting a protective sweep. Cf.

United States v. Carter, 360 F.3d 1235, 1242 (10th Cir. 2004)

(finding that a search conducted after an arrest outside the home

was not a lawful protective sweep because "the officers had no

reason to believe a third person . . . would attack them while they

were outside").6

impugn the reasonableness of their taking protective action.").
6
Lawlor's reliance on United States v. Paradis, 351 F.3d 21,
29 (1st Cir. 2003), and United States v. Weidul, 227 F. Supp. 2d
161, 165-66 (D. Me. 2002), aff'd, 325 F.3d 50 (1st Cir. 2003), is

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 Moreover, there can be no objection to the scope of the

sweep, as Fiske conducted a cursory inspection of only those spaces

where a person could have been found. Fiske walked through a

handful of rooms and then, almost immediately after finding the

shotgun in plain view, went back outside.7 The fact that, while

conducting the sweep, Fiske noticed what he thought was cocaine but

seized only the shotgun (the weapon that he most feared being

attacked with) supports our view that this was a lawful protective

sweep and not an illegitimate search for evidence.8

misplaced. In Weidul, "the only person known to have posed a
danger to anyone's safety[] had been removed [from the residence]
prior to the search." 227 F. Supp. 2d at 166. The same is true as
to Paradis. See 351 F.3d at 29 ("There was no reason to think that
there was another person . . . in the small apartment."). Here, by
contrast, even after Lawlor and Tomah had been immobilized, Fiske
had reason to believe that the residence still harbored at least
one individual who posed a danger to those at the scene.
7
Lawlor does not contest the finding that the gun was in plain
view.
8
Lawlor argues that the search was not a lawful protective
sweep because: (1) Fiske conducted a warrantless search of the
house before exploring other, less intrusive means of ensuring the
safety of those at the arrest scene (e.g., instead of conducting
the sweep, Fiske could have asked Lawlor, Tomah, or Delaite whether
there was anyone else in the house); (2) neither Fiske nor Meserve
behaved in a way that indicated that they feared an attack from
within the house (e.g., Fiske opted to enter the house alone rather
than to wait for backup); and (3) before leaving the house, Fiske
did not check all of the areas where a person could have been
hidden. However, Lawlor's arguments miss the mark. What is
important is that Fiske was justified in entering the house to
conduct a protective sweep and that the sweep itself was
appropriate in scope. See Whren v. United States, 517 U.S. 806,
813 (1996) (holding that an officer's subjective belief or
intention is irrelevant to Fourth Amendment analysis).

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Affirmed.

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