United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 28, 2003
Charles R. Fulbruge III
Clerk
No. 02-30629
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
KELLY DONALD GOULD,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
Before GARWOOD, SMITH and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:
In this felon-in-possession prosecution (18 U.S.C. §
922(g)(1)), the Government appeals the district court’s grant of
the motion to suppress filed by defendant-appellee Kelly Donald
Gould (Gould). We affirm.
Facts and Proceedings Below
On October 17, 2000, the Livingston Parish Sheriff's Office
(LPSO) was contacted by John Forehand, an employee of Gould.
Forehand asserted that Gould intended to kill two judges and
unidentified police officers and to destroy telephone company
transformers. The LPSO contacted the East Baton Rouge Parish
Sheriff's Office (EBRSO) and informed it of Forehand's complaint.
Sgt. Karl Kretser of the EBRSO performed a criminal history check
and determined that Gould had been arrested numerous times for
violent felonies and resisting police officers and “that he was a
convicted felon for violent charges.” Kretser's superiors also
informed him that several days earlier Gould had made threatening
remarks to someone, apparently in response to the unfavorable
result of a court proceeding.
Kretser met with LPSO Detectives Jim Brown and Jason Ard to
discuss the situation and then question the defendant. They
knocked on the front door of the trailer home where he lived, which
was answered by Dennis Cabral, who also lived in the trailer home.
Forehand was also inside the home. The officers asked to speak to
Gould, and Cabral told them he was probably asleep. The officers
asked if they could look inside for the defendant, and Cabral
agreed, pointing in the direction of Gould's bedroom.
Ard asked Cabral to go outside with him and Forehand, who had
already stepped outside, citing safety reasons. Brown and Kretser
entered the home and looked for the defendant. They testified that
they believed that a search was necessary to ensure officer safety
given Forehand's allegations and Gould's criminal history. The
2
door to Gould's bedroom was ajar; and, looking through and seeing
Gould was not in bed, they entered.1 After not seeing him in the
room, they looked in two closets. They testified that they
considered the closets potential hiding places. In one closet,
they saw three firearms. They left the firearms in the closet and
continued to search for Gould.
As Brown exited the bedroom, someone yelled that Gould had
gone outside. Brown went out the open back door and found Gould
several minutes later, hiding behind a log in the woods. The
officers handcuffed Gould, advised him of his rights, and escorted
him to a police car. In the police car, the police questioned
Gould about the guns. The officers asked for and received Gould's
consent to search the home, and he signed a written waiver of
search warrant. The officers then searched the home and retrieved
the guns. Gould was arrested for possession of firearms by a
convicted felon.
Gould was indicted for felony possession of a firearm by a
convicted felon under 18 U.S.C. § 922(g)(1). Upon Gould's motion,
the district court suppressed the guns, finding that the search of
the closet, characterized as a protective sweep, violated Gould's
1
The district court–without appellate challenge–found that “the officers’ initial entry into
the mobile home was legal, because they had the voluntary consent of a resident. However, Mr.
Cabral had neither actual nor apparent authority to consent to the search of the master bedroom.”
We do not interpret the district court’s ruling as including a finding that the presence of
the officers, when they initially observed that defendant was not in bed, was in violation of
defendant’s Fourth Amendment rights.
3
Fourth Amendment rights because it was not incident to an arrest.2
The Court rejected the government's arguments that United States v.
Wilson, 36 F.3d 1298 (5th Cir. 1994), could be distinguished. The
Government moved for reconsideration, which was denied by the
district court on May 16, 2002.
Discussion
A. Standard of Review
When reviewing a ruling on a motion to suppress, this court
reviews the district court's factual findings for clear error and
its legal conclusions, including its ultimate conclusion as to the
constitutionality of the law enforcement action, de novo. United
States v. Chavez, 281 F.3d 479, 483 (5th Cir. 2002). This court
views the evidence in the light most favorable to the party that
prevailed in the district court, which in this case was Gould. Id.
Applicability of the good faith exception to the exclusionary rule
is similarly reviewed when it was raised before the district court.
United States v. Cherna, 184 F.3d 403, 406-07 (5th Cir. 1999).
As a panel, we are without authority to overrule the decision
of another panel of this circuit. See United States v. Taylor, 933
F.2d 307, 313 (5th Cir. 1991). While this panel is not bound by
dicta of a previous panel, Curacao Drydock Co. v. M/V Akritas, 710
F.2d 204, 206 (5th Cir. 1984), nevertheless in this circuit
2
The court ruled that “Because the ‘protective sweep’ was not conducted as an incident to
arrest, however, the search of the closet in the master bedroom was illegal.”
4
alternative holdings are binding precedent and the presence of an
alternative holding “does not deprive [a holding] . . . of its
binding precedential force.” Williams v. Cain, 229 F.3d 468, 474
n.5 (5th Cir. 2000).
B. Applicability of Protective Sweep Exception
It is axiomatic that the physical entry of the home is one of
the chief evils against which the Fourth Amendment is directed.
Welsh v. Wisconsin, 104 S.Ct. 2091 (1984). The Supreme Court has
long held that exclusion of illegally obtained evidence is
generally required, finding that the exclusionary rule reaches not
only primary evidence obtained as a direct result of an illegal
search or seizure, Weeks v. United States, 34 S. Ct. 341(1914), but
also evidence later discovered and found to be derivative of an
illegality or "fruit of the poisonous tree." Nardone v. United
States, 60 S.Ct. 266, 268 (1939). The Government does not dispute
that, if the search violated the Fourth Amendment and is not
subject to a good faith exception, this body of law requires that
the evidence obtained must be excluded.
The Government does not contend the search here was
permissible under the "hot pursuit" exception to the warrant
requirement suggested by the Supreme Court in Warden v. Hayden, 87
S.Ct. 1642 (1967), or under the exigent circumstances exception
5
recognized in Coolidge v. New Hampshire, 91 S.Ct. 2022 (1971).3
The Government asserts that the items found in the bedroom were in
plain view and seized as a part of a valid "protective sweep" under
Maryland v. Buie, 110 S.Ct. 1093 (1990). Gould counters that the
case is controlled by language in Wilson stating the protective
sweep exception is only applicable when the sweep is incident to
arrest, but the Government maintains this is dicta and,
furthermore, that the present case is factually distinguishable.
In Wilson, this court considered a search involving a
defendant who was being investigated for possession of stolen mail.
Wilson, 36 F.3d at 1301. The officers lacked probable cause to
arrest the defendant, but went to the hotel where the defendant was
believed to be staying in order to question him. Another man, to
whom the room was registered, answered the door, invited the
officers in, and told them the defendant was in the bathroom. The
officer instructed the defendant to come out of the bathroom; after
he did so, the officer searched the hotel room, finding a checkbook
in a trash can in the bathroom. Id. The checkbook was stolen, and
the defendant was convicted of possession of stolen mail. Id. at
1301-02.
The Wilson panel concluded that the seizure of the checkbook
was unlawful. Rejecting the government's assertion that the search
3
Nor does it argue on appeal the inevitable discovery doctrine recognized in Nix v.
Williams, 104 S.Ct. 2501, 2509 (1984).
6
was incident to a protective sweep, this court wrote only a single
paragraph on that issue, as follows:
“Protective Sweep?
The government argues that the seizure of the checkbook
was lawful because it was discovered during a protective
sweep of the hotel room. A “protective sweep” is a quick
and limited search of a premises, incident to an arrest
and conducted to protect the safety of police officers or
others. It is narrowly confined to a cursory visual
inspection of those places in which a person might be
hiding. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct.
1093, 1094, 108 L.Ed.2d 276 (1990). The instant search
of the hotel room was not made as an incident to an
arrest and, therefore, it does not fit within the
‘protective sweep’ exception to the warrant requirement.
Moreover, under the instant circumstances, the seizure of
the checkbook from the wastebasket was not within the
narrow ambit of a “cursory visual inspection” of a place
where a person could be hiding. See Buie, 494 U.S. at
327, 110 S.Ct. at 1094.” Id. at 1035-36 (emphasis in
next to last sentence added).
The Government appears to assert that the language in the last
sentence in the above quotation–concerning taking the checkbook
from the wastebasket not being within the “ambit of a ‘cursory
visual inspection’ of a place where a person could be
hiding”–represents both a factual scenario distinct from the
present case and is the true holding of Wilson, the incident to an
arrest language of Wilson’s preceding sentence being dicta.
In any event, it is correct that the rummaging through the
trash can in Wilson did not involve intrusion into a place where a
person could be hiding and was a substantially more probing search
than the cursory peering into the closets in the case sub judice.
7
However, simply because one part of the holding in Wilson may be
inapplicable to the facts of this case, this panel is not at
liberty to disregard the other language in Wilson that clearly
constitutes a holding, in reference to an issue procedurally and
factually actually before the court in that case, that the
protective sweep exception is only applicable to searches incident
to an arrest. As noted, in this circuit, alternative holdings are
binding precedent. Nor can we reasonably read Wilson as holding
that the protective sweep exception was unavailable simply because
it was not justified either as being incident to an arrest or as
being confined to a cursory visual inspection of a place where a
person might be hiding. It seems to us that the only fair reading
of Wilson is that its holding is expressed in the next to last
sentence of its above quoted “protective sweep” paragraph, as
plainly reflected by the word “therefore” in that sentence. The
next sentence–concerning cursory visual inspection of potential
human hiding places–begins “[m]oreover,” indicating that it states
a separate, additional reason. This entire paragraph of the Wilson
opinion is plainly not written on the assumption that the search
would have been valid if it had met the criteria of either the next
to last or the last sentence of the paragraph.
The Government also seeks to factually distinguish Wilson on
various grounds, arguing that the circumstances in Wilson, unlike
those in the present case, entailed no reasonable suspicion of
8
danger, did not involve a search of a place where a person could be
hiding, and involved a seizure that was not in plain view.
However, the language in Wilson can only be read as a broad holding
that, whatever the other facts of a case may be, the protective
sweep exception is only applicable when the search is incident to
an arrest. It would not be appropriate for this panel to rewrite
a previous panel's decision to limit its plain scope. We
therefore agree with Gould that Wilson controls this case.
However, we think that for several reasons that it would be
appropriate for this court to review the present case en banc to
consider whether this circuit should adhere to Wilson’s ipso facto
disallowance of all protective sweeps not incident to an arrest.
First, federal courts have approved of the “knock and talk”
strategy as a reasonable investigative tool when officers seek to
gain an occupant's consent to search or when officers reasonably
suspect criminal activity. United States v. Jones, 239 F.3d 716,
720 (5th Cir.), cert. denied, 122 S.Ct. 142 (2001).4 The
4
The district court erroneously faulted the “knock and talk” strategy as applied here on the
factually clearly erroneous basis that before the officers went to the trailer home they had been
informed by Forehand that the defendant had firearms there. The court stated in this respect:
“. . . the officers could have obtained a valid search warrant based on the
information provided to them by Mr. Forehand. Mr. Forehand informed the
officers that, while at the mobile home one day, the defendant had retrieved a
twenty-two caliber rifle, equipped with a scope, from his bedroom and showed it
to him. Mr. Forehand also reported that Gould described additional weapons that
he owned. . . . With this information and the officers’ knowledge that the
defendant was a convicted felon, the officers should have obtained a search
warrant for the mobile home and specifically for the master bedroom. Their failure
to obtain a search warrant reduces the weight of the governmental interest in
9
Government has a significant interest in investigating credible
complaints indicating that individuals such as Gould intend to
commit murder and destroy property. We question whether the “knock
and talk” strategy can be safely carried out in practice if
officers are not allowed to conduct a protective sweep when they
reasonably apprehend danger in order to avoid being ambushed.
Secondly and most importantly, while no Supreme Court case
directly conflicts with this court's holding in Wilson, the
touchstone of the Supreme Court's Fourth Amendment jurisprudence
has been reasonableness. The reasonableness of a search is
determined by assessing, on the one hand, the degree to which it
intrudes upon an individual's privacy and, on the other, the degree
to which it is needed to promote legitimate governmental interests.
United States v. Knights, 122 S.Ct. 587, 591 (2001).
Reasonableness is a much more nuanced standard than the rigid rule
adopted in Wilson.
Indeed, this court in Wilson did not employ a reasonableness
test, but instead relied on the Court's opening statement in Buie
that “a protective sweep is a quick and limited search of premises,
incident to an arrest and conducted to protect the safety of police
conducting a ‘protective sweep’ of the master bedroom, because a ‘protective
sweep’ would have been unnecessary if the search were authorized by a search
warrant.”
However, the undisputed evidence is that Forehand did not say anything about the defendant
having firearms or there being such at the trailer until, after the defendant’s arrest, Forehand was
further questioned at the trailer.
10
officers or others.” However, the sweep in Buie was indisputably
incident to an arrest so the question of whether there could ever
exist conditions that would justify a protective sweep not incident
to an arrest was not before the Court. As such, this opening
sentence in Buie might properly be regarded as doing no more than
describing the issue then before the Supreme Court. Cf. Knights at
590 (noting that it is “dubious logic” to suggest that “an opinion
upholding the constitutionality of a particular search implicitly
holds unconstitutional any search that is not like it”).
This conclusion is strengthened by Terry where the Court
upheld a stop and frisk search of a pedestrian despite agreeing
with the factual finding of the lower court that the search was not
incident to the arrest because, before the weapons and other
evidence of the search was uncovered, the officers neither had
probable cause to arrest the individual or intended to do so. Terry
v. Ohio, 88 S.Ct. 1868, 1883 (1968). The Court concluded, “Our
evaluation of the proper balance that has to be struck in this type
of case leads us to conclude that there must be a narrowly drawn
authority to permit a reasonable search for weapons for the
protection of the police officer, where he has reason to believe
that he is dealing with an armed and dangerous individual,
regardless of whether he has probable cause to arrest the
individual for a crime.” Id. The Court contrasted the limited
type of search it approved in Terry with a more far-reaching
11
traditional search:
“The protective search for weapons, on the other hand,
constitutes a brief, though far from inconsiderable,
intrusion upon the sanctity of the person. It does not
follow that because an officer may lawfully arrest a
person only when he is apprised of facts sufficient to
warrant a belief that the person has committed or is
committing a crime, the officer is equally unjustified,
absent that kind of evidence, in making any intrusions
short of an arrest. Moreover, a perfectly reasonable
apprehension of danger may arise long before the officer
is possessed of adequate information to justify taking a
person into custody for the purpose of prosecuting him
for a crime.” Id. at 1882-83.
Although Terry involved the search of a pedestrian's person
rather than a search of the home, the overarching principle is that
“the touchstone of the Fourth Amendment is reasonableness.”
Knights at 591. As such, the difference in the expectation of
privacy on the part the pedestrian and of a person in their home
would simply be a factor to consider in striking the proper balance
between the rights of the individual and effective law
enforcement.5 This suggests that, rather than a rigid requirement
that a protective sweep in the home be incident to an arrest,
courts should consider a range of factors in balancing the
individual right to privacy with legitimate law enforcement
objectives.
Another relevant factor ought to be the reasonable likelihood
of a violent reaction by the defendant and, relatedly, the
officers' reasonable apprehension of danger either to themselves or
5
We note that Knights involved a search of the defendant’s apartment.
12
to others who may be on the premises. One fact that should inform
officers and courts in making this evaluation is the nature of the
crimes being investigated and whether the subject of the protective
sweep has a criminal record, particularly a violent one. Unlike
Wilson where the subject of the protective sweep was suspected of
writing fraudulent checks, the officers had been informed that
Gould was planning to commit murders. Furthermore, officers were
aware of Gould's violent criminal record. Given these
circumstances, the officers were reasonably concerned that, after
being voluntarily admitted into the trailer by Cabral, they could
be ambushed by Gould. Their concern could reasonably have
heightened after Cabral told them Gould was sleeping, but they saw
that he was not in his bed.
Finally, another factor in the reasonableness determination
should be the extent and intrusiveness of the search. We recognize
that a protective sweep must, by definition, be “quick and limited”
and “confined to a cursory visual inspection of those places in
which a person might be hiding.” Buie, 110 S.Ct. 1093, 1094. A
cursory check is a superficial one, limited in both scope and
duration. Florida v. Royer, 103 S.Ct. 1319, 1325 (1983). It is
rapidly undertaken to look for people who might pose a threat, with
little attention paid to detail. Id. "The [Fourth] Amendment's
protection is not diluted in those situations where it has been
determined that legitimate law enforcement interests justify a
13
warrantless search: the search must be limited in scope to that
which is justified by the particular purposes served by the
exception." Id.
Unlike the other factors which must be balanced, there is a
hard and fast requirement that a protective sweep be cursory and
“quick and limited,”6 but undoubtedly some searches are quicker and
more cursory than others. Once a protective sweep meets this basic
requirement, the more cursory, expeditious, and limited it is
within that permissible continuum, the more likely the balance of
factors will weigh in favor of finding it to be reasonable. It is
particularly significant, in our view, whether the protective
sweep, as is the case here, promptly concluded once the potential
danger ceased to exist.
We note that other circuits have adopted a reasonableness
approach that does not per se invalidate all protective sweeps not
incident to an arrest. In United States v. Patrick, 959 F.2d 991
(D.C. Cir. 1992), the D.C. Circuit upheld a protective sweep of an
apartment in a narcotics case in which the search warrant had
expired and someone living with the defendant allowed police in to
the apartment, but did not expressly purport to consent to the
search of the defendant's bedroom where the narcotics were
ultimately found. The court did not explicitly address whether the
6
There is likewise doubtless a hard and fast requirement that the officers’ presence on the
premises when the “protective sweep” is commenced not be inconsistent with the defendant’s
Fourth Amendment rights.
14
protective sweep was incident to an arrest, but the drug and weapon
convictions were entirely based on evidence found in the search of
the bedroom and there was no arrest warrant but only an expired
search warrant at the time of the protective sweep. The court
held:
“Once the police were lawfully on the premises, they were
authorized to conduct a protective sweep based on their
reasonable belief that one of its inhabitants was
trafficking in narcotics. Cf. Maryland v. Buie, 110
S.Ct. 1093 (1990) (during execution of arrest warrant,
police authorized to do protective sweep of spaces in
house where person posing danger to police could hide and
launch attack if based on reasonable belief that area
swept holds such person). We think the holding in Buie,
notwithstanding the search there was conducted pursuant
to a warrant and not consent, supports the police search
here. Accordingly, the police validly entered the
bedroom when they looked through the open door and saw
Patrick inside.” Patrick, 959 F.2d at 996.
The Patrick opinion is not cited in Wilson.7
In United States v. Taylor, 248 F.3d 506 (6th Cir. 2001), the
Sixth Circuit also upheld a protective sweep (absent a valid
warrant) that was not incident to an arrest. The court explained:
“Taylor argues that a protective sweep is authorized
only when it is made incident to a lawful arrest.
Therefore, he contends, because Hill had not been
arrested when the officers made their cursory search of
Taylor's apartment, the sweep was per se invalid. In
contrast, the government argues that while Buie and
Briggs were each decided in the factual context of
officers' making an arrest, nothing in the those opinions
indicates that an arrest is a mandatory prerequisite for
conducting a protective sweep of the area. The
7
This suggests that the Wilson panel was likely unaware of Patrick and hence would not
have followed our court’s policy that a panel opinion which would create a conflict between
circuits must be precirculated to all active judges.
15
government further points out that the Buie decision was
based upon the reasoning set forth in the Supreme Court's
earlier decisions in Terry and Long, both of which were
investigative stop cases.
We believe the government presents the more
compelling argument. Once an officer has probable cause
to believe contraband is present, he must obtain a search
warrant before he can proceed to search the premises. See
Segura v. United States, 104 S.Ct. 3380 (1984). However,
the Supreme Court has held that because evidence may be
removed or destroyed before a warrant can be obtained, an
officer does not violate the Fourth Amendment by securing
the area to be searched and waiting until a warrant is
obtained. (footnote and citation omitted). We think that
it follows logically that the principle enunciated in
Buie with regard to officers making an arrest--that the
police may conduct a limited protective sweep to ensure
the safety of those officers--applies with equal force to
an officer left behind to secure the premises while a
warrant to search those premises is obtained. We
emphasize, however, that the purpose of such a protective
sweep is to protect the safety of the officer who remains
at the scene, and for that reason, the sweep must be
limited to a cursory search of the premises for the
purpose of finding persons hidden there who would
threaten the officer's safety.” Taylor, 248 F.3d at 513-
14.
Finally, as a practical matter, we believe that the need for
police officers to protect themselves by conducting protective
sweeps can be equally acute regardless of whether the sweep is
incident to an arrest.
In our view, this court would be well advised to consider en
banc whether a reasonableness approach that balances a variety of
relevant factors is preferable to the holding in Wilson.
Nevertheless, this panel is bound to follow Wilson and therefore
upholds the district court's determination that the evidence at
issue here was not obtained pursuant to valid protective sweep.
16
C. Good Faith Exception to Exclusionary Rule
Given that the protective sweep exception is inapplicable, the
Government argues, in the alternative, that the officers' actions
in this case meet the good faith exception to the exclusionary
rule. This contention was first raised in the Government’s motion
for reconsideration of the district court’s order granting the
motion to suppress. In denying the motion to reconsider, the
district court noted that there was no evidentiary hearing as to
good faith, and stated that “this court cannot make a finding on
whether the officers were in good faith or not.” However, the
court went on to discuss the law and rule that “the good faith
exception to the exclusionary rule is inapplicable to this case.”
The primary purpose of the exclusionary rule “is to deter
future unlawful police conduct and thereby effectuate the guarantee
of the Fourth Amendment against unreasonable searches and
seizures.” United States v. Calandra, 94 S.Ct. 613, 619-20 (1974).
In United States v. Williams, 622 F.2d 830, 840 (5th Cir. 1980) (en
banc), cert. denied, 101 S.Ct. 946 (1981), this court stated that
“evidence is not to be suppressed under the exclusionary rule where
it is discovered by officers in the course of actions that are
taken in good faith and in the reasonable, though mistaken, belief
that they are authorized.” We reaffirmed that principle in United
States v. DeLeon-Reyna, 930 F.3d 396, 400-01 (5th Cir. 1991) (en
banc).
17
Several types of good faith exceptions are recognized. An
officer may make a judgmental error, i.e. a “good faith mistake,”
concerning the existence of facts sufficient to constitute the
requisite probable cause or reasonable suspicion. See United
States v. Leon, 104 S.Ct. 3405 (1984); DeLeon Reyna at 401. An
officer may also act based on an objectively reasonable mistake of
law. United States v. Lopez-Valdez, 178 F.3d 282 (5th Cir. 1999);
DeLeon Reyna at 401. Further, an officer may generally rely upon
a statute which is later ruled unconstitutional, a warrant which is
later invalidated, or a court precedent which is later overruled.
Williams.
In United States v. Whaley, 781 F.2d 417, 418-19 (5th Cir.
1986), this court considered a case where officers could have
obtained a search warrant based on the appearance of marijuana
outside and in plain view, but instead violated the Fourth
Amendment by removing the plants without a warrant and absent
exigent circumstances. The government asserted a good faith
exception because the officers believed they could enter the land
to take the marijuana in plain view without a search warrant. Id.
at 421. In rejecting the argument, this court stated that:
“[t]he exception is not devised for the unlawful conduct
of all officers who mean well. The good faith belief
must be grounded in objective reasonableness. The
mistake of an operative fact or an error of technical
nature may not bar admission of evidence. The mistake
here was on a basic point of established law. To extend
the exception so far as to allow evidence of a clearly
unlawful warrantless search of residential property would
18
put too great a premium on ignorance of the law and would
virtually terminate the exclusionary rule. This is
neither our wish nor our prerogative.” Id. (citations
omitted).
The Government asserts that a number of facts in the record
support application of the good faith exception. For example, the
officers looked only in places where a human could hide, they did
not seize the guns in the closet upon sight, and they discontinued
their sweep when they became aware the defendant had gone outside.
Each of these facts, along with the others stated, would support
the contention that the officers limited their search to a
protective sweep, and thus their action would be legal if a
protective sweep were allowed when not incident to an arrest.
However, none of these facts falls within the ambit of the good
faith exception. Ultimately, to the extent the officers made a
mistake of law, it could not have been grounded in objective
reasonableness, because it was clearly contrary to Wilson, which
was then and had been for some six years the established law of
this circuit and had (and has) not been limited or narrowed. Thus,
we cannot conclude that the officers could have reasonably thought
a protective sweep not incident to an arrest would be lawful.8
Conclusion
8
It might be arguable that the officers made a “good faith mistake” of fact in believing that
Cabral, acting with either actual or apparent authority, had given them valid consent to search
Gould's bedroom. However, the Government does not assert this argument on appeal and this
court will not consider nonjurisdictional issues not raised on appeal. United States v. Bigler, 817
F.2d 1139, 1140 (5th Cir. 1987).
19
For the foregoing reasons, the district court’s suppression
of the evidence at issue is
AFFIRMED.
20