364 F.3d 578 (5th Cir. 2004), 02-30629, United States v. Gould

Docket Nº:02-30629.
Citation:364 F.3d 578
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Kelly Donald GOULD, Defendant-Appellee.
Case Date:March 24, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 578

364 F.3d 578 (5th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellant,

v.

Kelly Donald GOULD, Defendant-Appellee.

No. 02-30629.

United States Court of Appeals, Fifth Circuit

March 24, 2004

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M. Patricia Jones, Asst. U.S. Atty. (argued), Baton Rouge, LA, for Plaintiff-Appellant.

Rebecca L. Hudsmith, Federal Public Defender (argued), Joseph R. Streva, Jr., Lafayette, LA, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before KING, Chief Judge, and GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT and PRADO, Circuit Judges.[*]

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GARWOOD, Circuit Judge:

In this felon-in-possession prosecution (18 U.S.C. § 922(g)(1)), the Government appeals the district court's granting of the motion to suppress filed by defendant-appellee Kelly Donald Gould (Gould).

Louisiana deputy sheriffs, having received on October 17, 2000, a telephone warning that Gould, known to be a convicted felon with a reputation for violence, was planning to kill two local judges, went that same evening to the approximately 14 X 60 foot trailer where Gould lived to talk to him, not then intending to arrest him. The officers, who had neither a search nor an arrest warrant, were admitted by another resident of the trailer, Dennis Cabral, who said Gould was asleep in his bedroom. The officers entered and proceeded down the hall towards the bedroom Cabral had indicated. The bedroom door was open, but the officers did not see Gould, and they then conducted a brief protective sweep for him, looking under the bed and opening the door to each of the two bedroom closets, in one of which they saw in plain view, but did not then seize, three rifles. They promptly then ran outside and later found Gould hiding in the woods. In subsequent questioning Gould stated he was keeping the rifles for their owner, a female acquaintance. Gould was then arrested, executed a consent to search, and the rifles were then seized.

The district court, granting the motion to suppress the weapons, held that although "Cabral had apparent authority to consent to the search of the mobile home ... he had no apparent authority to consent to a search of the master bedroom." The Government sought to invoke the "protective sweep" doctrine of Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). However, the district court, though recognizing that the officers "needed to locate the defendant for their own safety, so they could make sure he did not launch a surprise attack from a hidden location," construed our opinion in United States v. Wilson, 36 F.3d 1298, 1306 (5th Cir. 1994), as having "explicitly restricted the use of the 'protective sweep' exception to the warrant requirement to searches incident to arrest," and thus held that "[b]ecause the 'protective sweep' was not conducted as an incident to arrest, however, the search of the closet in the master bedroom was illegal." In denying the government's motion for reconsideration, the district court summarized and confirmed its prior ruling:

"[T]his court noted the defendant's violent past, and did not dispute that the officers were justified in viewing the defendant as a violent and potentially dangerous individual. Furthermore, the officers' search of the master bedroom did not exceed the acceptable scope of a protective sweep, which extends only to a cursory inspection of those spaces where a person may be found, and lasts no longer than is necessary to dispel the reasonable suspicion of danger. However, this court found that the initial search was illegal, because it did not meet the requirement that a protective sweep must be incident to an arrest."

A panel of this court affirmed. United States v. Gould, 326 F.3d 651 (5th Cir. 2003). The panel concluded that it was bound by Wilson, the most reasonable reading of which was that it laid down an across-the-board, bright-line rule that, whatever the other circumstances of a particular case might be, the "protective sweep" doctrine was always inapplicable if the sweep was not incident to an arrest. Gould at 654-55. The panel, however, suggested the appropriateness of considering en banc "whether this Circuit should adhere to Wilson 's ipso facto disallowance of all protective sweeps not incident to an arrest." Id. at 655, et seq. We then voted

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the case en banc. United States v. Gould, 335 F.3d 376 (5th Cir. 2003).

I.

WHETHER A PROTECTIVE SWEEP MUST ALWAYS BE INCIDENT TO AN ARREST

We turn initially to the primary issue now before us, namely whether there is an across-the-board, hard and fast per se rule that a protective sweep can be valid only if conducted incident to an arrest. We hold there is not.

We begin, of course, with the Supreme Court's opinion in Buie. And that opinion does, indeed, begin with the statement that "[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. at 1094. But there was no dispute in Buie that the sweep was incidental to arrest, and nothing in Buie states that if the officers were otherwise lawfully in the defendant's home and faced with a similar danger such a sweep would have been illegal. The Buie Court had no occasion to so state as the sweep there was indisputably incident to the arrest. We note that in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), likewise a home search case, the Court describes as "dubious logic" the argument "that an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it." Id. at 590.

We do not suggest that Buie did not emphasize the fact of arrest. It indeed did. But it did so because the arrest exposed the officers to danger. Buie at 1098. However, Buie gives no indication that circumstances other than arrest which expose police officers to a comparable degree of danger could not also justify a similar protective response (at least where those circumstances are not the product of police illegality or misconduct). Similarly, Buie notes that the arrest there was pursuant to a warrant, so the officers were lawfully on the premises for a proper purpose. Id. at 1096 (citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)) and 1097. But nothing in Buie suggests that the result would have been different had the police otherwise properly entered the house as, for example, pursuant to a proper consent rather than a warrant. Cf. Payton at 1374-75 ("We now ... hold that the Fourth Amendment ... prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest") and 1378 ("we are dealing with entries into homes made without the consent of any occupant"). Moreover, Buie makes clear that neither the arrest nor the warrant sufficed to justify the sweep there, which occurred after the arrest and was of an area of the home well removed from the place of arrest, an area in which the defendant retained a Fourth Amendment protected privacy interest. Id. at 1097, 1099 (citing the holding in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), that a search incident to an in-home arrest may not extend beyond the area from within which the arrestee might then obtain a weapon). Rather, the sweep in Buie was evaluated on a general Fourth Amendment reasonableness standard, and was justified, in reliance on the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), where there was reasonable suspicion that the area swept harbored a person posing a danger to the officers present and the sweep was limited to a cursory inspection of places where a person may be found and lasted no longer than necessary to dispel the reasonable suspicion of danger nor longer than what it

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takes to complete the arrest and leave the house. Buie at 1096-99.

In Buie, two men, one wearing a red running suit, committed an armed robbery and later that day an arrest warrant respecting that offense was issued for Buie and another man (no search warrant was ever issued). Two days thereafter the police, by having a telephone call made to Buie's house which was answered first by a female and then by Buie, ascertained that Buie was at home, and then proceeded to his house, entered it and looked for Buie on the first and second floors. Then Officer Rozar went to the top of the basement stairs and shouted into the basement stating " 'this is the police' " and "ordering anyone down there to come out." Id. at 1095. Then,

"Buie emerged from the basement. He was arrested, searched and handcuffed by Rozar. Thereafter, Detective Joseph Frolich entered the basement 'in case there was someone else' down there. He noticed a red running suit lying in plain view on a stack of clothing and seized it." Id. (emphasis added).

The Maryland Court of Appeals reversed Buie's robbery conviction holding that the trial court erred by denying his motion to suppress the running suit because Frolich's sweep of the basement was supported neither by a search warrant nor by probable cause to believe that a serious and demonstrable potentiality for danger existed there; reasonable suspicion did not suffice. Buie v. State, 314 Md. 151, 550 A.2d 79 (1988). The Supreme Court vacated and remanded, holding that reasonable suspicion sufficed, and that probable cause was not required, for such a protective sweep. Buie, 110 S.Ct. at 1094-95.

The Supreme Court, though acknowledging that the arrest warrant authorized the...

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