United States v. Hauk

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.

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 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

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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

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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

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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.

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 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.

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 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-