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
-2-
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
-3-
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.
-4-
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
-5-
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
-6-
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
-7-
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.
-8-
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
-9-
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
-10-
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.
-11-
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
-12-
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
-13-
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
-14-
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
-15-
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).
-16-
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)
-17-
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
-18-
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
-19-
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.
-20-
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
-21-
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."
-22-
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
-23-
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,
-24-
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.
-25-
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.
-26-
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
-27-
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.
-28-
Winston's basement and Winston's statement made in response to the
discovery of that safe. I respectfully dissent.
-29-