United States v. Nelson

• Decision Date: 17 August 2017
• Docket Number: No. 16-3292,16-3292
• Citation: 868 F.3d 885
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen M. NELSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

868 F.3d 885

UNITED STATES of America, Plaintiff-Appellee,

v.Stephen M. NELSON, Defendant-Appellant.

No. 16-3292

United States Court of Appeals, Tenth Circuit.

FILED August 17, 2017

Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender, and Tim Burdick, Assistant Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Kansas City, Kansas, for Defendant-Appellant.

James T. Ward, Special Assistant United States Attorney (Thomas E. Beall, United States Attorney, with him on the brief), Office of the United States Attorney, Kansas City, Kansas, for Plaintiff-Appellee.

Before TYMKOVICH, Chief Judge, MATHESON and MORITZ, Circuit Judges.

MORITZ, Circuit Judge.

After seven law enforcement officers arrested Stephen Nelson in a private residence, one officer continued searching the residence and found two firearms. The government attributed the firearms to Nelson, and he was indicted for possession of a firearm by a felon. See 18 U.S.C. § 922(g)(1). Nelson moved to suppress the firearms, arguing that the officers violated the Fourth Amendment by continuing to search the residence after arresting him. The district court denied Nelson's motion, concluding that the post-arrest search was a valid protective sweep because the officers "could have reasonably believed that someone other than [Nelson] was hiding in the house." R. vol. 1, 95.

Nelson entered a conditional guilty plea, and he now appeals the district court's order denying his suppression motion. We vacate the denial based on our conclusion that the searching officer had no basis to reasonably believe that an unknown, dangerous person was hiding in the residence. Nevertheless, we remand for the district court to determine, in the first instance, whether the owner of the residence consented to the search.

I

While Nelson was serving a term of supervised release, his probation officer obtained an arrest warrant based on Nelson's alleged failure to comply with several conditions of that release. Although the probation officer indicated that Nelson's whereabouts were unknown, the United States Marshals Service learned that Nelson occasionally stayed at a house owned by Antonio Bradley. Nelson had a small child with Bradley's daughter, Allie, who lived with her parents.¹ Deputy Marshal Jovan Archuleta asked Bradley to contact him if Nelson appeared at the Bradley residence.

Bradley did exactly that. On May 2, 2015, he told Archuleta that Nelson was in the Bradley residence and that the deputy marshals could "go inside and search for" Nelson. R. vol. 2, 36. Three deputy marshals—Chris Johnson, Bradley Owens, and Michael Thibault (collectively, the deputies)—formed a task force to execute the arrest warrant with four Kansas City, Kansas police officers. The deputies drove to the Bradley residence and knocked and announced at the front door.

After a minute or so of knocking, Allie opened the door. When the deputies informed Allie of their intent to arrest Nelson, she responded that he was upstairs. Allie said that she would retrieve Nelson herself and then attempted to shut the door on the deputies. But Johnson prevented Allie from doing so, and the deputies entered the residence.

The Bradley residence has four levels. The deputies entered at the third level, which consists of a living room, a dining room, and a kitchen. The fourth level, where Allie asserted Nelson was located, contains three bedrooms. The second level consists of a family room and a garage. From there, a set of stairs descends into a subbasement area—the first level.

Upon entry, the deputies cleared the third level. The deputies then shouted upstairs, instructing Nelson to show himself. Meanwhile, Thibault and Owens escorted Allie to the second level so that she could retrieve her child. After clearing that level, Thibault and Owens moved to the top of the stairs leading down to the first level. That's when Thibault saw movement on the first level.

From the top of the stairs, Thibault shouted commands for the unidentified person to come out and show his hands. After ten seconds of shouting, Nelson came around the corner with his hands in the air. Thibault and Owens instructed Nelson to walk up the stairs to the second level and placed him in custody there. Owens then descended the stairs to search the first level. There, he found two firearms underneath a pile of clothes on a bed. Each of the Bradleys disavowed knowledge and ownership of the firearms.

Because Nelson had two previous felony convictions, the government charged him with possession of a firearm by a felon. Nelson moved to suppress the firearms, arguing that the deputies violated the Fourth Amendment by continuing to search the residence after arresting him. In response, the government made two arguments relevant on appeal: (1) Bradley, the owner of the residence, consented to the search; and (2) Owens lawfully searched the first level under the protective-sweep doctrine set forth in Maryland v. Buie , 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

In Buie , the Court recognized two exceptions to the general rule that police must obtain a warrant to search a home. Under the first exception (Prong One) the police may, in conjunction with an arrest in a home, "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." Id . at 334, 110 S.Ct. 1093. Under the second exception (Prong Two), police may conduct a "protective sweep" beyond areas immediately adjoining the arrest if there are "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 335, 110 S.Ct. 1093.

Citing Prong Two, the district court concluded that the facts surrounding Nelson's arrest "would support a reasonable belief that someone else was in the house who could pose a danger to the [deputies] or others." R. vol. 1, 94. Thus, the district court concluded that Owens conducted a valid protective sweep and denied Nelson's motion to suppress on that basis. Nelson appeals.

II

On appeal, Nelson argues that the district court erred in relying on Prong Two to deny his motion because the deputies had no reason to believe that a dangerous third person was hiding in the residence. The government defends the district court's reasoning and asserts three alternative grounds for affirming: (1) under Prong One, the deputies lawfully searched the first level because that area immediately adjoins the place of Nelson's arrest; (2) the good-faith exception to the exclusionary rule applies; and (3) Bradley consented to a search of the entire residence. In reviewing these arguments and the district court's denial of Nelson's motion, we examine the district court's factual findings for clear error and its application of the relevant legal standards de novo. See United States v. Hauk , 412 F.3d 1179, 1185 (10th Cir. 2005).

A

The district court concluded that Deputy Owens lawfully conducted a protective sweep of the first level because, under Prong Two, the deputies could have reasonably believed that "someone else [aside from Nelson] was in the house who could pose a danger to the [deputies] or others." R. vol. 1, 94. We disagree.

The district court relied on three facts in reaching its conclusion: (1) Allie attempted to shut the front door on the deputies; (2) Allie incorrectly informed the deputies that Nelson was upstairs, on the fourth level, when in fact he was on the first level; and (3) Nelson failed to immediately show himself to the deputies when they instructed him to do so. But these facts don't create an inference that someone other than Nelson was hiding in the house, whether the three facts are taken separately or together.

Nor does the government explain how these facts create the necessary inference. Instead, the government resorts to a fallback position—that "the officers had no way of knowing if anyone else was in the residence." Aplee. Br. 29. But for the following reasons, that argument turns Prong Two on its head.

Under Prong Two, the government is required to articulate specific facts giving rise to the inference of a dangerous third person's presence. See 494 U.S. at 337, 110 S.Ct. 1093. As we've previously explained, "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...." United States v. Carter , 360 F.3d 1235, 1242-43 (10th Cir. 2004) ; see United States v. Roof , 103 Fed.Appx. 652, 658 (10th Cir. 2004) (unpublished) ("A mere absence of information about whether anyone remains in a home does not justify a protective sweep."). In short, " ‘[n]o information’ cannot be an articulable basis for a sweep that requires information to justify it in the first place." United States v. Colbert , 76 F.3d 773, 778 (6th Cir. 1996). Accordingly, if the deputies had no knowledge regarding the potential presence of a third person, then the government is per se unable to make the affirmative showing that Buie requires.

Our prior decisions in this area illustrate the type of specific, articulable facts that might reasonably suggest the presence of an unknown, dangerous person. See, e.g. , United States v. Denson , 775 F.3d 1214, 1219-20 (10th Cir. 2014) (affirming validity of Prong Two protective sweep based on specific information that "a second person lived in the home who was wanted on an outstanding warrant"); Hauk , 412 F.3d at 1192 (concluding that police "had a reason to suspect that there was an unidentified person lurking somewhere in the house" because while police were waiting outside house, third party drove up and appeared to enter house); United States v. Cavely , ...