United States v. Winston

United States Court of Appeals
For the First Circuit

No. 05-1312

UNITED STATES OF AMERICA,

Appellant,

v.

CHARLES WINSTON, JR.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Torruella, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.

John-Alex Romano, Attorney, Appellate Section Criminal
Division, United States Department of Justice, with whom Michael J.
Sullivan, United States Attorney, Ariane D. Vuono and Thomas J.
O'Connor, Assistant United States Attorneys, were on brief, for
appellant.
David P. Hoose, with whom Katz, Sasson, Hoose and Turnbull,
was on brief, for appellee.

April 21, 2006
 TORRUELLA, Circuit Judge. This is an interlocutory

appeal by the government under the provisions of 18 U.S.C. § 3731

from an order of the district court suppressing evidence obtained

pursuant to a search warrant. For the reasons stated hereinafter,

we reverse. The district court concluded that the search warrant

was based on information that was illegally obtained by government

agents incident to defendant Charles Winston's ("Winston") arrest.

Specifically, the court found that the observation by the arresting

officers of a certain amount of cash in Winston's nightstand, as

well as of a safe located in the basement of his house, resulted

from an unreasonable search in violation of Winston's Fourth

Amendment rights. Therefore, it found that this information could

not be used to establish probable cause in support of the issuance

of a valid search warrant. The court thus proceeded to invalidate

the search warrant for lack of probable cause and consequently

suppressed the evidence discovered thereunder, namely, $58,000 in

cash, a scale with white powder residue, a hand gun, and

ammunition.

I. Background

Pursuant to an investigation of a large-scale drug

trafficking organization, federal agents obtained an indictment of

Winston along with about twenty-five others on October 14, 2003.

The indictment charged Winston with distributing cocaine on

December 16, 2002 and with being part of a conspiracy to distribute

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cocaine between July 2002 and February 2003. Also on October 14,

2003, a warrant issued for Winston's arrest.

On October 15, 2003, agents went to Winston's house to

arrest him. Some of the agents had previously seen Winston, his

girlfriend, and his distinctive blue BMW. One of the agents had

arrested Winston about two weeks earlier for possession of a

handgun. One of Winston's codefendants had informed the agents

that he had sold Winston two handguns and a bullet-proof vest.

Arriving at Winston's house, a duplex, agents saw

Winston's car in the driveway of his house. The agents did not

notice any other cars near the house. The agents surrounded the

house and surveilled it for about an hour and a half, hoping that

Winston would exit. During this time, the agents did not observe

any activity in the house.

Agents then knocked on the door to Winston's house, the

right half of the duplex. Winston's girlfriend answered the door,

but the agents present did not know who she was. The agents asked

her who owned the blue BMW. She denied knowing the owner of the

car and suggested that the agents inquire next door. The agents

did so, but no one responded.

About five minutes later, agents knocked again on the

door to Winston's house. In the meantime, Agent Burns had walked

around the house to the vicinity of the front door. When Winston's

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girlfriend opened the door, Agent Burns recognized her as Winston's

girlfriend. The agents then pushed past her into the house.

One agent shouted "Chuck," and Winston immediately

responded from upstairs "up here." Agents went up the stairs with

guns drawn. They saw Winston's child near the top of the stairs

and saw Winston in the hallway talking on a cell phone. This

occurred within twenty seconds of entering the home. Agents

ordered Winston to drop the phone. Winston complied, and agents

put him in custody without a struggle. Agents did not conduct a

protective sweep on the second floor. During this time, Agent

Burns went upstairs to bring the child downstairs and out of harm's

way.

After handcuffing Winston with his hands behind his back,

agents asked him for identification. Winston told them that it was

in the nightstand in his bedroom. Because of clothes piled in the

bedroom, the agents could not find the nightstand so they brought

Winston into the bedroom and asked him again. Winston pointed to

the nightstand with his shoulder. The agents opened the drawer in

the nightstand to find Winston's wallet on top of a large amount of

cash.

Trooper Martin had entered the house at the same time as

the group of agents who proceeded to the second floor, but he moved

immediately through the living room and kitchen until he came upon

a set of interior stairs which lead to the basement of the house.

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Thereupon he proceeded down the stairs into the basement for the

purpose of securing that area. Upon reaching the basement floor he

observed a furnace, and behind it an object covered by a blanket.

He proceeded to remove the blanket and discovered a safe which

measured approximately twenty-four inches in height by seventeen

inches in width by twenty seven inches in depth. After having

brought the child to the first floor, Agent Burns followed Trooper

Martin into the basement where Trooper Martin showed him the safe.

These two agents went back upstairs and, in Winston's presence,

informed the other agents of their discovery of the safe. Winston

then stated, "That's my safe."

II. Protective Sweep of the Basement

The Fourth Amendment protects individuals from

unreasonable searches and seizures. Maryland v. Buie, 494 U.S.

325, 331 (1990). Generally, the search of an individual's house

without a search warrant is unreasonable and violates the Fourth

Amendment. Id. Exceptions to this general rule arise when the

benefits to the public interest outweigh the individual's privacy

right. Id. One such exception is a protective sweep conducted in

conjunction with the arrest of an individual in his home. Id. at

327.

"A 'protective sweep' is a quick and limited search of

premises, incident to an arrest and conducted to protect the safety

of police officers or others." Id. To prevent law enforcement

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from abusing the protective sweep by using it as a pretext for

searching an individual's home, the Supreme Court has limited its

use. First, law enforcement officers conducting the sweep must

have a reasonable suspicion of danger: "there must be 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." Id. at 334 & n.2. The reasonable suspicion

standard is "considerably less demanding than the level of proof

required to support a finding of probable cause," United States v.

Martins, 413 F.3d 139, 149 (1st Cir. 2005), but must be based on

more than an unfounded speculation, United States v. Cook, 277 F.3d

82, 85 (1st Cir. 2002). Second, the scope of a protective sweep

must be limited to its purpose. The sweep "may extend only to a

cursory inspection of those spaces where a person may be found."

Buie, 494 U.S. at 335. Additionally, the duration of the sweep

must be "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." Id. at 335-36.

The district court in this case held that the protective

sweep violated the Fourth Amendment. We review the district

court's factual findings for clear error. United States v. Palmer,

203 F.3d 55, 60 (1st. Cir. 2000). We review de novo the

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constitutional question of whether the protective sweep violated

the Fourth Amendment. Id.

A. Reasonable Suspicion

The district court found that the agents did not have a

reasonable suspicion to believe that a dangerous person could be in

the basement. The government contests this finding and puts forth

a number of facts to support a finding of reasonable suspicion.

First, the agents had information to believe that Winston was armed

and dangerous and possibly with armed and dangerous cohorts.

Winston was indicted, along with twenty-five others, for

distribution of cocaine as part of an investigation of a large-

scale cocaine trafficking organization. One of the other

defendants informed agents that he had sold Winston two handguns

and a bullet-proof vest. One of the agents present had also

previously arrested Winston after a traffic stop for possession of

a handgun. Second, the government finds significant that Winston's

girlfriend initially denied having knowledge of Winston's car.

From this deception, the government argues that a reasonable agent

could believe that the purpose of the deception was to gain time to

allow Winston and/or his cohorts to hide, exit the house through

another door or window, or prepare an ambush. Third, the

government notes that when agents called out Winston's name,

Winston responded "up here" from the second floor. The government

found it unusual that Winston responded so casually from the second

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floor when agents forcibly entered his house and argues that a

reasonable agent could believe that Winston's unusual response was

part of a scheme to escape or to allow others in the drug

organization to escape or ambush the agents.

In response, Winston argues that the circumstances would

lead agents to believe that no others were present in the house.

First, Winston notes that agents surveilled the house for an hour

and a half and, during this time, saw no indication of anyone's

presence in Winston's house. However, since Winston, his

girlfriend, and their child were in the building but unobserved,

others could easily have been in the home. Next, Winston finds

significant that an agent testifying at the suppression hearing

could not recall if there were other cars parked in Winston's

driveway or near Winston's home, implying that there were no other

cars and thus no sign of other people being present in Winston's

house. Winston argues that if cars were present the agent would

have noticed them and would have been able to recall this fact. We

refuse to ascribe such meaning to the agent's failure to recall

whether cars were present, especially given the lack of other

relevant information. Finally, Winston points out that when the

agents entered the house, they did not see or hear any evidence of

another person. We do not find this highly relevant since the

purpose of a protective sweep is to protect agents from concealed

threats.

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 We find that, based on the information presented above,

the agents had a reasonable suspicion to believe that a dangerous

person could be in the basement. Underlying a protective sweep is

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.'" United States v. Lawlor, 406 F.3d 37, 41 (1st Cir.

2005) (quoting Buie, 494 U.S. at 333, 336). Winston was a

potentially dangerous drug dealer who had recently purchased a

bullet-proof vest and firearms and had numerous, potentially armed

and dangerous cohorts. This risk was compounded by the deceptive

actions of Winston's girlfriend, which gave any potential occupants

inside the house five minutes to conceal themselves or prepare an

ambush. Further, given that Winston knew that agents had forcibly

entered his house, his casual response inviting them upstairs was

unusual. One would expect Winston either to evade the agents or to

surrender to them by coming downstairs or responding that he was on

his way down. His casual, inviting response could lead a

reasonable agent to believe that it was part of a scheme to lead

the agents away from the basement because others were hiding there

waiting to escape or launch a surprise attack on the agents. "The

fact that the sweep revealed that there was no person [in the

basement] has no bearing on whether [agents were] justified in

conducting the sweep in the first place." Id. at 42 n.5. We think

that a reasonably prudent agent could believe "that there was a

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distinct possibility that a man was hiding in the [basement]."

Martins, 413 F.3d at 150. When agents arrest an armed criminal

with known cohorts in his home, they put themselves in a dangerous

situation and must be able to protect themselves. In these

situations, the experienced perceptions of law enforcement agents

deserve deference and constitute a factor in our reasonable

suspicion analysis. Id. at 150 & n.4.

B. Scope

Additionally, the district court found that the scope of

the sweep was excessive because agents immediately arrested

Winston, and agents could have protected themselves by guarding the

top of the stairs. This finding, however, begs the point.

Obviously, the agents had the right to protect themselves not only

from Winston but from all other circumstances reasonably within the

scope of the dangers they were facing, i.e., an arrest involving a

member of a drug organization with multiple constituents, not all

of whom had been accounted for, who were likely to be armed, as

Winston was, in a setting which presented an opportunity for ambush

or similar violent conduct against the arresting officers.

The scope of the protective sweep in this case, in both

location and duration, was within the bounds set forth by the Court

in Buie. Officers may make only "a cursory inspection of those

spaces where a person may be found." Buie, 494 U.S. at 335. Here,

agents walked immediately through the first floor and basement and

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moved a blanket covering a space large enough for a person to hide.

We find that their actions constituted a limited and cursory

inspection.

Winston argues that the agents could have protected

themselves by guarding the top of the basement stairs. As judges

trained in the law, and not in apprehending suspects, we cannot

determine in this situation how the agents could have gone about

protecting themselves, but it does not seem logical or reasonable

that given the circumstances previously explained, the agents would

leave such an obvious hiding place, from which harm could be

dispensed, unsecured. Even if Winston were correct, the validity

of a protective sweep "does not turn on the availability of less

intrusive investigatory techniques." United States v. Sokolow, 490

U.S. 1, 11 (1989).

Winston also notes that the agent did not descend

cautiously into the basement and that agents did not conduct a

protective sweep of the second floor, suggesting that the agents

did not actually fear for their safety and that the protective

sweep was merely a pretext to search Winston's house. We do not

agree with Winston that these particular choices by the agents

necessarily indicate that the sweep was pretextual. An agent could

determine that it would be safer to move silently and swiftly into

the basement instead of announcing his presence. Further, agents

need not coordinate their intentions to conduct a protective sweep.

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The validity of a protective sweep conducted by the agent on the

first floor is not negated by the separate decision of agents on

the second floor that a protective sweep is not there necessary.

Regardless, the agents' subjective intentions are not relevant as

long as the protective sweep was objectively reasonable. Lawlor,

406 F.3d at 43 n.8 (citing Whren v. United States, 517 U.S. 806,

813 (1996)). Furthermore, we are not here to second guess the

agents as to how to conduct a protective sweep, for as stated, we

are not qualified to do so nor is that within the scope of our

judicial duties. We are able, however, to pass upon whether their

actions were objectively reasonable given the circumstances and

constraints within which they operated. We believe they were.

The duration of the sweep must be "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. The facts show that

Winston's house was small and that Trooper Martin moved quickly

into the basement. After arresting Winston, Agent Burns went into

the basement to inform Trooper Martin of the arrest, and all agents

departed. There was no evidence that the agents lingered longer

than necessary to arrest Winston.

C. Statement of Ownership

The district court also suppressed Winston's statement

admitting his ownership of the safe, because it arose from the

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illegal observation of the safe. Given our validation of the

safe's discovery and Winston's failure to otherwise contest this

statement on appeal, we conclude that this admission was also

improperly suppressed.

III. Consent to Search the Nightstand

Another exception to the search-warrant requirement is a

search by consent. United States v. Forbes, 181 F.3d 1, 5 (1st

Cir. 1999). In order to establish this exception, "the government

must prove valid consent by a preponderance of the evidence." Id.

To be valid, a consent to search must of course be voluntary. Id.

The consent may be express or inferred from conduct. United States

v. Miller, 589 F.2d 1117, 1130 (1st Cir. 1978) (finding defendant's

unlocking of a suitcase to be implied-in-fact consent for officers

to search the suitcase). "The existence of consent and the

voluntariness thereof are questions of fact to be determined from

all the circumstances surrounding the search." Id. We review the

district court's findings on voluntariness and consent for clear

error. Id. We will uphold the district court's finding as long as

it is "fairly supported" by the evidence. United States v. Laine,

270 F.3d 71, 75 (1st Cir. 2001).

The district court tersely found that Winston did not

consent to the search of the nightstand that led to the retrieval

of his wallet and the discovery of the cash: "His indication in

response to questioning of where his wallet could be found cannot

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be construed as a consent to search." Clearly, Winston did not

explicitly consent to a search of the nightstand, but the

government argues that Winston's actions amounted to an inferred

consent or an implied-in-fact consent.

Winston points out several factors that weigh against a

finding of consent: agents forced their way into Winston's home,

approached him with weapons drawn, ordered him to drop his cell

phone, handcuffed him with his hands behind his back, and did not

read him Miranda warnings. However, it is inherently reasonable

for the agents to ask Winston for identification to verify his

identity. See Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177,

185 (2004) ("In the ordinary course a police officer is free to ask

a person for identification without implicating the Fourth

Amendment.").

The facts clearly support a conclusion to the effect that

Winston consented to the search of the nightstand. Upon being

asked for verification of his identity, he verbally indicated that

his wallet was in the nightstand in the bedroom. The agents could

not immediately locate the nightstand in the bedroom, so they

escorted Winston into the bedroom. When asked again for the

location of his identification, he indicated with a shoulder

movement in the direction of the nightstand. While the agents did

not explicitly ask for permission to open the drawer to retrieve

Winston's identification, the circumstances described would

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reasonably lead the agents to conclude that Winston was consenting

to the opening of the drawer in the nightstand to allow for the

retrieval of his wallet and identification. Any other conclusion

would allow Winston the benefits of sandbagging the agents into

committing a violation of his rights. Given the unquestioned

facts, we see no reason why we should go along with such a

deception.

In United States v. Cepulonis, agents bearing shotguns

arrested and handcuffed Cepulonis outside his hotel room. 530 F.2d

238, 243 (1st Cir. 1976). Cepulonis requested to speak with his

wife and child in the hotel room, and the agents allowed him to

enter the hotel room in their company. Id. After conducting a

protective sweep, the agents asked Cepulonis if there were any

weapons in the room, to which he responded, "no, go ahead, search."

Id. at 244. We upheld the district court's finding that the search

was consensual. Id. Here, the inherent coerciveness of the

situation is similar in that Winston was handcuffed, agents had

drawn weapons, and family members were present. Favoring a finding

of implied-in-fact consent in this case is the fact that a request

for information about the location of Winston's identification is

much more benign than a request for information about the location

of weapons.

We do not find it of decisive significance that in

response to the agent's question as to the location of the

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nightstand, Winston motioned with his shoulder rather than

speaking. In other situations, we have found implied-in-fact

consent based entirely on silent actions. See Robbins v.

MacKenzie, 364 F.2d 45, 48 (1st Cir. 1966). In Robbins, officers

announced themselves at the door to a robbery suspect's apartment

and asked to speak with him. Id. at 47. The suspect silently

opened the door and walked back into the room. Id. We found that

he "expresse[d] by his action as adequate a consent to entry as he

would by a verbal invitation." Id. at 48.

We do not lightly reverse a district court's holding when

reviewing for clear error. We note that the facts surrounding the

search of the nightstand are undisputed, and thus we are not

disturbing the district court's findings of historical facts or

credibility. Given the record as determined by the district court,

we find that the district court's holding that Winston's acts did

not constitute an implied-in-fact consent to open the drawer of the

nightstand is not fairly supported by the record.

The district court did not determine whether Winston's

actions surrounding the search of the nightstand were voluntary.

We have no trouble finding that Winston acted voluntarily.1 As

described above, an in-home arrest pursuant to a search warrant is

1
Because we find no serious question as to whether Winston acted
voluntarily, we see no need to remand to the district court to make
this determination. See United States v. Byram, 145 F.3d 405, 407
(1st Cir. 1998).

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an inherently coercive situation, but such a situation does not

preclude a finding of voluntariness. United States v. Watson, 423

U.S. 411, 424 (1976). The subject matter of the request, Winston's

identification, weighs heavily in favor of voluntariness. The

agent testified that he routinely asks for identification when

making arrests, and such a request is eminently reasonable. The

mundaneness of identification makes it unlikely that agents would

bother to use coercive methods to obtain it. Further, because

Winston immediately responded to the agents' requests, the evidence

shows that Winston merely answered their questions and was not

coerced into doing so.

IV. Conclusion

The district court erred in suppressing the evidence

obtained pursuant to the search warrant and Winston's statement

claiming ownership of the safe. The motion to suppress is

reversed, and the case is remanded to the district court for

further proceedings consistent with this opinion.

Reversed and Remanded.

(Concurring and Dissenting opinion follows)

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 STAHL, Senior Circuit Judge, concurring in part and

dissenting in part. The majority's decision today misapplies

precedent that dictates what is permissible under the modest

"protective sweep" doctrine announced in Maryland v. Buie, 494 U.S.

325 (1990). The two officers who testified at the suppression

hearing each stated that they had no reason to think that anyone

dangerous (other than Charles Winston himself) was in the house

where the safe was found. The government on appeal urges a number

of factors it speculates might have given an officer grounds to

fear an ambush here, including the fact that Winston was known to

own and carry a firearm, but I do not believe that these factors

add up to the degree of suspicion that Buie requires before a

protective sweep may be conducted. The district court correctly

concluded that the Fourth Amendment did not permit the agents who

arrested Charles Winston to conduct a protective sweep of the

basement of the apartment in which they found him, and that the

evidence that resulted from that search had to be suppressed.

While I join the majority in holding that the search of the

nightstand was constitutional, I disagree with its conclusion that

the search of the basement was likewise permissible. Respectfully,

I dissent.

I.

Before discussing my disagreement with the majority's

position, I address the government's anterior argument that the

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search was not a protective sweep at all, and that the agent who

searched the basement was in fact simply searching for Charles

Winston. The district court found that the search of the basement

"cannot be justified by any attempt to locate the defendant"

because "the agents had no need to search the basement for the

defendant, having taken him into custody immediately upon entering

the apartment." I would uphold the district court's factual

conclusion.

At the hearing, the government relied on two witnesses,

Special Agent Donald Wales, the arresting officer, and Special

Agent Patrick Burns, another member of the arrest team. Notably,

the state did not present the testimony of a Massachusetts State

Trooper named Martin, the officer who performed the basement search

and uncovered a concealed safe behind a furnace.

On the basis of the officers' testimony presented at the

hearing, faithfully recounted by the district court and by the

majority, it might be possible to take a number of views of what

happened in the basement on the day Winston was arrested. One

could surmise that Martin tore into the building and down the

basement steps and quickly uncovered the safe, all before Agent

Wales mounted the stairs and apprehended Winston on the second

floor landing. Or one might conclude that Martin headed straight

for the basement and was still there, searching for Winston and

oblivious of the fact that the agents upstairs had already located

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him, when he discovered the safe. And it also might be possible to

conclude that the apartment was so small that Martin, down in the

basement, heard the ruckus upstairs, knew that Winston had been

located, but continued searching nevertheless.

The district court rejected the first possibility out of

hand, finding that Winston's arrest took place "within seconds" of

the agents' entrance into the apartment. That left two

possibilities: either Martin never gleaned that Winston had been

located upstairs, or he did but continued to search anyway. On a

motion to suppress evidence seized on the basis of a warrantless

search, the presumption favors the defendant, and it is the

government's burden to demonstrate the legitimacy of the search.

See United States v. Lopez, 380 F.3d 538, 543 (1st Cir. 2004)

(citing Mincey v. Arizona, 437 U.S. 385, 390-91 (1978)). The

government made its case harder, if indeed it had a case, by

failing to provide the testimony of Trooper Martin himself. So

long as Martin did not know that Winston had been found, he surely

had a right to continue looking for him as long as his fellow

officers made reasonably diligent efforts to communicate the fact

of the arrest to him. But only Martin himself could have testified

as to whether he had reason to believe that Winston had been found.

The court had to determine, without the benefit of

Martin's testimony, whether Martin knew or did not know that his

license to continue searching for the defendant had come to an end.

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Under the right circumstances, it would probably be reasonable to

infer that an agent did not know -- but given the burden on the

government, the uncertainty in this case had to be resolved in the

defendant's favor. What is more, the district judge took a view of

the house itself, and that fact is to be given much weight in our

analysis. On the basis of the small size of the apartment as

observed during the view, the district judge evidently concluded

that anyone searching the basement would have been in a position to

hear what was happening on the stairs to the second floor of the

unit. Without Martin's testimony to the contrary, I defer to the

district court in its finding that the officers "had no need to

search the basement for the defendant, having taken him into

custody immediately upon entering the apartment."

II.

Once Martin's authority to search for Winston himself

expired, the only remaining justification for continuing his search

would have been that he was searching for potential assailants

hiding in wait in the basement. In my opinion, such a protective

sweep was not permissible here.

When law-enforcement agents legally enter a home and

arrest a criminal suspect, the suspect nevertheless retains "an

expectation of privacy in those remaining areas of his house" which

the police have not yet searched. Buie, 494 U.S. at 333. The

majority thinks that in this case, Winston's interest in that

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privacy was outweighed by the searching officer's purported

interest in the arrest team's safety. In so holding, it strikes a

balance that is not in line with Buie or with the great mass of

cases in any circuit in this area that have been decided in the

years since Buie was handed down, and reaches a conclusion

unsupported in the record.

Warrantless searches are "per se unreasonable . . .

subject only to a few specifically established and well-delineated

exceptions." Katz v. United States, 389 U.S. 347, 357 (1967).

Buie established one such exception, which permits a protective

sweep incident to an arrest if the searching officer has "a

reasonable belief based on specific and articulable facts which,

taken together with the rational inferences from those facts,

reasonably warrant[s] the officer in believing that the area swept

harbor[s] an individual posing a danger to the officer or others."

Buie, 494 U.S. at 325 (internal quotations and citations omitted).2

The constitutionality of a protective sweep under particular

circumstances is a mixed question of fact and law: we review the

court's factual findings for clear error "and then review de novo

2
There are two Buie exceptions to the warrant requirement, of
which the one claimed to apply in this case is the second, broader
type discussed in the text. Under the first exception, officers
are permitted to, "as a precautionary matter and without probable
cause or reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which an attack
could be immediately launched." Buie, 494 U.S. at 334. The
government is rightly not claiming that the basement search here
was of a "space immediately adjoining the place of arrest."

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its ultimate conclusion that the discerned facts constitute a

sufficient legal basis to justify the conduct about which the

defendant complains." United States v. Martins, 413 F.3d 139, 146

(1st Cir. 2005) (citing United States v. Schaefer, 87 F.3d 562, 565

(1st Cir. 1996); United States v. Tibolt, 72 F.3d 965, 969 (1st

Cir. 1995)).

The Buie Court went to some effort to ensure that law-

enforcement agents (as well as courts) would understand that the

decision permits only limited searches and only under particular,

narrow circumstances: a Buie sweep is "not a full search of the

premises" and can involve only a "cursory" inspection of spaces in

which a person could be found, 494 U.S. at 335; it is not a "top-

to-bottom" search, id. at 336; and it is "decidedly not

'automati[c],'" id. (alteration in original) (quoting Chimel v.

California, 395 U.S. 752, 766-67 (1969)). Respectful of these

admonishments, we have strictly construed Buie's exceptions to the

prohibition on warrantless searches.

Every one of our own cases addressing the propriety of a

protective sweep has turned on the searching officer's suspicion

vel non, based on some affirmative evidence, that a particular and

identifiable individual, for example, the arrestee's missing

accomplice or housemate, remained in the building that was

searched. See Martins, 413 F.3d 139 (man whose voice answered door

thought to be inside apartment); United States v. Lawlor, 406 F.3d

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37 (1st Cir. 2005) (suspect's brother thought to be in house);

Crooker v. Metallo, 5 F.3d 583 (1st Cir. 1993) (suspect's

accomplice thought to be in house); United States v. Daoust, 916

F.2d 757 (1st Cir. 1990) (homeowner thought to be in house); see

also United States v. Paradis, 351 F.3d 21, 29 n.7 (1st Cir. 2003)

(protective sweep not permissible because police did not "believe

that a specific individual other than the arrestee [was] present

and dangerous").

Our sister circuits are widely in agreement. See, e.g.,

United States v. Gandia, 424 F.3d 255, 264 (2d Cir. 2005)

("Officers must point to facts that give rise to an individualized

suspicion and cannot rely solely on generalizations that suspects

are usually accompanied by dangerous third parties." (citing United

States v. Moran Vargas, 376 F.3d 112, 116 (2d Cir. 2004))); see

also United States v. Carter, 360 F.3d 1235, 1242-43 (10th Cir.

2004); United States v. Chaves, 169 F.3d 687, 692 (11th Cir. 1999);

Sharrar v. Felsing, 128 F.3d 810, 825 (3d Cir. 1997); United States

v. Colbert, 76 F.3d 773, 777-78 (6th Cir. 1996); United States v.

Ford, 56 F.3d 265, 269 & n.6 (D.C. Cir. 1995); United States v.

Delgadillo-Velásquez, 856 F.2d 1292, 1298-99 (9th Cir. 1988)

(anticipating Buie).3

3
The Fourth Circuit has produced no cases in point. The Fifth
Circuit has few, but they are consistent with the general principle
I have described. See United States v. Waldrop, 404 F.3d 365, 369
(5th Cir. 2005); United States v. Muñoz, 150 F.3d 401, 411-12 (5th
Cir. 1998). The Seventh Circuit is similarly consistent. See,

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 By their own admission at the suppression hearing, the

agents in this case had no information indicating affirmatively

that anyone other than Winston was in the house. There was, as far

as the government showed, only the defendant's car in front of the

building, and no one had entered the apartment for the hour and a

half that the officers spent watching the house prior to their

entry. The government's only two witnesses were Wales and Burns.

On cross-examination by the defense, Wales was asked: "You didn't

have any reason on that morning to believe that there was any other

specific person that you knew of in that apartment, is that

correct?" Wales testified in reply: "I didn't have any reason to

believe there was anybody in either one."4 Similarly, Agent Burns

was asked, "You had no information whatsoever that Mr. Winston had

anybody there who would attempt to aid him or anything like that in

the event of an arrest, is that correct?" Burns replied simply,

"Yes."

e.g., Leaf v. Shelnutt, 400 F.3d 1070, 1088 (7th Cir. 2005); United
States v. Burrows, 48 F.3d 1011, 1017 (7th Cir. 1995); United
States v. Barker, 27 F.3d 1287, 1291 (7th Cir. 1994). A more
permissive view is taken in the Eighth Circuit. See United States
v. Cash, 378 F.3d 745, 749 (8th Cir. 2004); United States v. Horne,
4 F.3d 579, 586 (8th Cir. 1993).
4
Wales had earlier testified that the agents had set out to look
for Winston at 110-A Carr Street, but on arriving at the location
had discovered that the building at 110 Carr Street had two
unmarked doors. Wales' reference to "either one" was a reference
to the confusion: Wales evidently did not have information about
whether anyone was in either of the two apartments that might have
been 110-A.

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 As far as the government showed at the hearing,

therefore, the officers at the arrest site that day had no

information that would indicate that anyone other than Winston was

in the house in which they hoped to arrest him.5 And if Buie's

admonition that its exception is not to be seen as automatic is to

mean anything at all, "[l]ack of information cannot provide an

articulable basis upon which to justify a protective sweep."

Colbert, 76 F.3d at 778. Cf. id. (protective sweep unjustified in

part because the arresting officer "testified that he 'didn't have

any information at all' when asked whether he had information that

anyone was inside the . . . apartment prior to his decision to

conduct the protective sweep"). See also Carter, 360 F.3d at

1242-43 ("Of course, there could always be a dangerous person

concealed within a structure. But that in itself cannot justify a

protective sweep, unless such sweeps are simply to be permitted as

a matter of course, a result hardly indicated by the Supreme Court

in Buie."); Delgadillo-Velásquez, 856 F.2d at 1298 (protective

sweep was unconstitutional where officers had "no information that

any other persons were in the apartment").

The majority's approval of the search here rests in large

part on the arresting officers' belief that Winston had, at some

point, bought two guns and a bullet-proof vest from a co-

5
Once Winston's girlfriend Ortiz opened the door, the agents of
course knew that she was there, but Ortiz's presence did not make
the presence of dangerous third parties more likely.

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conspirator, and the report of a police officer who had detained

Winston for a traffic violation and found he was carrying a

handgun. These facts should have given the arrest team cause to

worry that Winston himself posed a threat to them, but they did

nothing to justify a belief that there was anyone else in the house

with Winston on the day of his arrest. "The facts upon which

officers may justify a Buie protective sweep are those facts giving

rise to a suspicion of danger from attack by a third party during

the arrest, not the dangerousness of the arrested individual."

Colbert, 76 F.3d at 777 (emphasis added).

The majority also relies on Winston's yell (suspiciously

quick) from the top of the stairs, indicating to the agents that he

was on the second floor, along with Winston's girlfriend's attempt

(suspiciously dilatory) to mislead the agents by denying knowledge

of the car parked out front. The latter, the majority thinks,

might have been an effort to delay the police while an ambush was

set up, while the former could have been an effort to distract them

while it was being sprung. Though not an argument offered by

either of the officers in their testimony, this seems a plausible

theory. In order to justify a Buie sweep, however, law-enforcement

agents need more than a plausible theory that hypothesizes a third

person on the premises. Nearly any indication that some third

person is present might be enough -- an unaccounted-for voice

behind a door, Martins, 413 F.3d at 151; movement in an upstairs

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window, Burrows, 48 F.3d at 1017; an extra car in a driveway,

United States v. Hauk, 412 F.3d 1179, 1192 (10th Cir. 2005) -- but

without any affirmative indication of this sort that a third person

may be lying in wait, the police have nothing more than the "mere

'inchoate and unparticularized suspicion or "hunch"'" that the

Court indicated in both Terry and Buie was insufficient to justify

a warrantless search. Buie, 494 U.S. at 332 (quoting Terry v.

Ohio, 392 U.S. 1, 27 (1968)).6

III.

For the foregoing reasons, I would affirm the decision of

the district court to suppress the material seized from the safe in

6
The government makes a pair of additional arguments in favor of
admission of the evidence at issue, but both are unavailing. The
first is easily disposed of: the government argues on appeal that
the safe in the basement would inevitably have been found and thus
should be admissible under the inevitable discovery rule of Nix v.
Williams, 467 U.S. 431 (1984), but it did not make that argument to
the district court and it offers no reason why we should take it up
for the first time on appeal. See United States v. Dimeo, 28 F.3d
240, 241 n.3 (1st Cir. 1994); United States v. Elwell, 984 F.2d
1289, 1298 (1st Cir. 1993). For the second, the government raises
the question of the applicability of the good-faith exception to
the warrant requirement, announced in United States v. Leon, 468
U.S. 897, 924 (1984), which permits an officer to rely on a
defective warrant if he does so in good faith. The good faith
exception is inapposite here, however. The doctrine forgives an
officer for the error of a magistrate or other official who issues
a warrant, but is not available to an officer who objectively
should have known that the information supporting the application
was unconstitutionally obtained. "Leon requires not merely good
faith, but objective good faith." United States v. Curzi, 867 F.2d
36, 44 (1st Cir. 1989) (citing Leon, 468 U.S. at 924). I need not
question the subjective good faith of the agents who searched
Winston's house in order to conclude, as I do, that it would not
have been reasonable for them to believe that their searches were
constitutionally permissible.

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Winston's basement and Winston's statement made in response to the

discovery of that safe. I respectfully dissent.

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