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Protective sweep of home properly conducted

Facts

The Monroe, Louisiana Police Department (“MPD”) received a call on May 11, 2019, that someone with an AR rifle, or AR styled rifle, or long gun was firing rounds outside the Parkview Apartments. That complex is located in an extremely high-crime area. Officers could not find the shooter or the weapon, but they found 17 spent .223 caliber rifle rounds in the parking lot and heard 15 shots while there.

Two days later, MPD received an anonymous tip that Eugene Thurman was a felon in possession of an assault rifle. The tipster further conveyed that Thurman was a 44 year-old black male who lived in unit 74 at Parkview Apartments with his girlfriend and her two children and that he was known to carry the weapon in a red bag with him. The tip did not provide enough evidence to obtain a search warrant, but officers determined that Thurman’s was a known felon with a lengthy criminal history.

With that knowledge, Lieutenant Triche Passman, Corporal James Schmitz, Detective Doug Lambert, and Detective Snowberger, along with at least two other officers, went to the Parkview Apartments later on May 13th to conduct a knock and talk. Upon arriving, they found three children playing outside unit 74, and one said that Thurman was inside with somebody before going to retrieve him.

Thurman emerged about 20 seconds later and stood right outside of the unit with the door still ajar. Lambert detected an odor of marijuana wafting from the apartment. The encounter was recorded on police bodycams. For seven to eight minutes, police spoke to Thurman outside the apartment. During that time, a child entered the unit and then exited along with a woman. Thurman nervously denied possessing a gun. Although he denied that it was his apartment, Thurman admitted he frequented it. Thurman gave police the lessee’s name, and they attempted, without success, to contact her for permission to search the apartment. Thurman refused to approve a warrantless search.

Alarmed by Thurman’s nervousness, evasive answers, and the possibility that others remained in the apartment, Passman announced that he was going to “clear the unit” and Lambert told him to “make sure there was nobody else in there.” Passman and Snowberger then entered the unit with their guns drawn and the former yelled “Monroe Police, anybody else in here?” Lambert and Schmitz remained outside. Within 30 seconds Passman observed an AK-47 assault rifle propped up against a wall in the far corner of the back bedroom, a baggie of marijuana on the night table, and digital scales. He then emerged from the hallway and instructed the officers outside to handcuff Thurman.

Passman and Snowberger returned to the doorway, but they had not yet determined that no one else was inside, so Lambert followed them to conduct a secondary sweep. Passman re-drew his sidearm and, within approximately 30 seconds, the officers searched the bathroom and both bedrooms. All three officers then exited the unit. The initial and secondary protective sweeps lasted only approximately one minute combined.

Lambert submitted a search warrant application that requested to enter 1101 Richwood Road 2 Apt. 74 to collect any and all illegal drugs and weapons found inside the residence. The application stated, in relevant part, that a protective sweep of the apartment was performed due to the chance of someone else being in the apartment and them being armed with a rifle. But it only dedicated one sentence to describing what officers saw inside.

The application further explained that officers had been unable to contact the lessee. And it critically maintained that an odor of marijuana was detected coming from the apartment. A state court judge signed the warrant that same afternoon. The search commenced shortly afterward and lasted only 20 minutes. Officers recovered: a sandwich bag containing suspected marijuana, a digital scale, Thurman’s ID card, an AK-47 Century International Model M70 AB2,3 an AK-47 magazine containing 11 7.62 X 39 rounds, an empty Glock 40 magazine, and a brown leather case containing several 30-06 rounds.

Thurman conditionally pled guilty to being a felon in possession of a firearm. He appealed the motion to suppress the evidence, which was denied by the trial court. The 5th circuit affirmed.

Analysis

1. Protective sweep

This court assesses the validity of protective sweeps by evaluating whether:
o First, the officers had a legitimate law enforcement purpose for entering the dwelling;
o Second, the sweep was supported by a reasonable, articulable suspicion that the area to be swept harbored an individual posing a danger to those on the scene;
o Third, the sweep was no more than a cursory inspection of those spaces where a person may have been found; and
o Fourth, the sweep lasted no longer than was necessary to dispel the reasonable suspicion of danger and no longer than the police were justified in remaining on the premises.

A. Law enforcement purpose

Officers suspected that Thurman had an assault rifle, which could have fired the numerous .223 rounds in the nearby parking lot two days earlier. They had also examined Thurman’s background, which includes four drug-related convictions, one conviction for fleeing arrest, and at least four other charges for allegedly beating women on various occasions. And, as explained below, the officers reasonably suspected that another person may have been hiding in the unit. Viewing that evidence in the light most favorable to the government, officers had a legitimate law enforcement purpose for entering the unit.

B. Reasonable suspicion of individual posing danger

A child told Schmitz, as officers approached the unit, that somebody besides Thurman was inside, and a woman and child remained in the apartment after Thurman initially exited. It was therefore reasonable to suspect that someone else could be inside, and that person could have foreseeably gotten hold of the suspected firearm.

Thurman emphasizes that Passman blocked any entry into the apartment as he stood at the apartment’s entryway with his back to the apartment’s interior and that he did so for a large part of the time that officers stood talking with him. To be sure, an officer’s behavior can objectively reveal a purpose to conduct a search, which logically means that such behavior can also support or undermine the reasonableness of a protective sweep.

But Thurman ignores Passman’s conduct during the sweeps. For example, Passman drew his gun and announced his presence as he entered the unit to conduct the first sweep. If Passman was truly unconcerned for his safety, such measures would have been unnecessary. Further, Passman moved quickly and left the apartment quickly. During the secondary sweep, Passman again drew his sidearm and had two other officers providing backup. These actions were limited to measures appropriate to the protection of officer safety rather than an investigation for incriminating evidence. They dispel any inference that an unreasonable search was occurring.

C. Cursory inspection

The area in front of the bed where the gun was seen appeared to be wide enough space for someone to have crouched down to avoid detection. And it took the officers only a little over 30 seconds to find the weapon after the search began. Moreover, Passman observed the baggie of marijuana in plain view on the nightstand at approximately the same time as he saw the gun.

This court in Silva upheld the validity of protective sweeps under mattresses as police searched for persons potentially hiding in hollowed-out spaces. The much more limited sweeps here amounted to no more than cursory inspections of spaces where a person may have been found.

D. Lasted no longer than necessary

Video evidence proves these sweeps lasted no longer than one minute, i.e., no longer than necessary to dispel the reasonable suspicion of danger posed by another person and no longer than the police were justified in remaining on the premises.

Based on the totality of the circumstances viewed in the light most favorable to the government, the initial and secondary protective sweeps were constitutionally reasonable.

2. Independent source doctrine *

The independent source exception to the exclusionary rule allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source.

To determine whether lawful searches and seizures are genuinely independent of earlier tainted ones, we must assess whether the expurgated warrant affidavit provided probable cause for the issuance of the warrant by the magistrate judge and whether the illegal search affected or motivated the officers’ decision to procure the search warrant.

The search warrant contained sufficient information to justify a search without reference to anything seen during the protective sweeps. In fact, Lambert’s search warrant affidavit included only a single sentence referring to anything observed during the protective sweep and only mentioned contraband observed in plain view.

The more subjective second consideration about the officers’ motivation concerns the precise nature of the information acquired during the illegal search and the relative probative import of this information compared to all other information known to the officers. Passman’s post-sweep remarks and testimony in isolation could suggest that the sweeps motivated him to procure a search warrant. For example, Passman testified that he did not have sufficient grounds to apply for a search warrant until after the sweep was done and the items—the marijuana, and the rifle were seen. But he took no action to obtain a warrant. On the contrary, he remained on scene and finally authorized Schmitz to procure a warrant.

Schmitz was on the phone during the protective sweeps trying to contact the apartment lessee. He neither participated in the sweeps nor saw any contraband. But Schmitz smelled marijuana at the premises and took Lambert along to procure the warrant. Lambert later testified that Schmitz largely told him what information to draft in the warrant application.

In sum, the record fairly shows that Schmitz catalyzed the search warrant application without ever entering the unit, and Passman’s involvement in submitting a warrant application was nil. Finally, the application itself focuses on the smell of marijuana, with a mere mention of items inside the apartment. We cannot form a definite and firm conviction that the district court clearly erred by determining that the government satisfied the second consideration. The independent source doctrine thus independently would bar application of the exclusionary rule.

* The 5th agreed with the trial court that the independent source doctrine would have admitted the evidence even if the protective sweep had not been ruled proper.

 

https://www.ca5.uscourts.gov/opinions/unpub/21/21-30450.0.pdf