by Richard Resch

The U.S. Court of Appeals for the Tenth Circuit ruled that a protective sweep of a house conducted incident to the lawful arrest of an occupant was too broad and thus was not permissible under the Fourth Amendment. The Court reversed the district court’s denial of the defendant’s motion to suppress evidence obtained as a result of the protective sweep.

U.S. Marshals had an arrest warrant for Stephen Bagley, a convicted felon wanted for violating the terms of his supervised release. To execute the arrest warrant, marshals obtained a search warrant granting entry into a house for the sole purpose of locating and arresting Bagley. Marshals did not have any evidence or reason to believe that any dangerous individual, other than Bagley, was inside the house.

Bagley was reportedly in the southeast bedroom when marshals entered the house. He eventually surrendered near the front door and was handcuffed. Marshals then conducted a protective sweep of the entire house, and in the bedroom where Bagley had been, they found ammunition and drugs. Based upon that discovery, marshals obtained a search warrant for the entire house for firearms, ammunition, and drugs. During the subsequent search, they found a gun. Bagley filed a motion to suppress evidence of the gun, which the district court denied. Bagley appealed the ruling.

The Tenth Circuit began its analysis by noting that the protective sweep doctrine serves as an exception to the Fourth Amendment’s warrant requirement with respect to searches. A protective sweep is a quick, cursory inspection of the premises; it is not a full search.

The seminal protective sweep case is Maryland v. Buie, 494 U.S. 325 (1990), in which the U.S. Supreme Court announced that protective sweeps are permitted in two specific situations: (1) officers may look in “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched” and (2) officers may look elsewhere upon specific, articulable facts supporting a reasonable belief that a dangerous person remains on the premises.

The government argued that Bagley was arrested for Buie analysis purposes in the southeast bedroom because he announced that he would surrender while present in that room. The Court rejected that argument, reasoning that he was unrestrained at that time and was free to renege on his promise. The freedom to go back on his word only ceased when he was handcuffed near the front door, so his place of arrest was at that location. Under Buie’s first situation, a protective sweep was permissible only within the rooms and closets adjoining the front door area, but the southeast bedroom was located outside that permissible sweep area. Accordingly, the sweep conducted by the marshals failed to qualify as a lawful search under Buie’s first situation.

In denying Bagley’s motion to suppress, the district court ruled that the protective sweep in this case fits Buie’s second situation. The Tenth Circuit disagreed with that conclusion. Even the government conceded that it does not apply to this case as a result of the Court’s recent decision in United States v. Nelson, 868 F.3d 885 (10th Cir. 2017), in which it held that “lack of knowledge [of the presence of a dangerous person] cannot constitute specific, articulable facts required by Buie.”

In the present case, the marshals who entered the house and arrested Bagley lacked any information about whether someone other than those individuals who voluntarily came forward in response to the marshals entering the house, i.e., Bagley’s girlfriend and children, was inside the house. In Nelson, the Court reasoned that “if officers lack any information about whether someone remains inside a house, they do not have the specific, articulable facts required for a protective sweep beyond the adjacent areas.”

The Bagley Court concluded that the “lack of specific, articulable facts required invalidation of the search in Nelson, and the same is true here.” The Court’s conclusion that the protective sweep violated the Fourth Amendment, however, did not end the analysis as to whether evidence of the gun must be suppressed.

The government took the position that the good-faith exception to the exclusionary rule applies when, as in this case, the officers’ conduct is “close” to the line of validity. The Tenth Circuit flatly rejected that position by pointing out that it repudiated an identical argument in Nelson. In that case, the Court ruled that the lack of reliance on a third party prevented application of the good-faith exception even if it were true that the officers’ conduct had been “close” to the line of validity. As in Nelson, the marshals in Bagley did not rely on a third party’s mistake, so the good-faith exception did not apply in this case either.

The Tenth Circuit ruled that the district court erred in denying Bagley’s motion to suppress because the protective sweep carried out by the marshals exceeded the two permissible situations set forth in Buie. Therefore, the Court reversed and remanded with instructions to grant Bagley’s motion to suppress evidence of the gun. See: United States v. Bagley, 877 F.3d 1151 (10th Cir. 2017). 

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