Tenth Circuit Still Says Only Arrests Justify Protective Sweeps

UNITED STATES v. TORRES-CASTRO, USCA-10 No. 05-2357, 2006 U.S.App. LEXIS 30420, appeal from USDC-NMD, before Chief Judge Tacha and Circuit Judges Kelly and Murphy, opinion by Kelly, filed 12 Dec 2006.

LONG STORY SHORT: Unless incident to arrest, a warrantless protective sweep of a home is an illegal search, although the inevitable discovery rule applied here to deny suppression. Binding in CO, KS, NM, OK, UT, WY.

FACTS: On 02 Dec 2004, officers of the Albuquerque, NM Police Department encountered a 14-year-old female running down a street. She told officers that Defendant, her 20-year-old boyfriend, was an armed illegal alien who had beaten her and restrained her from leaving, threatening to shoot anyone who tried to take her away from him. Officers Phel (who told the others that Defendant was a DV perpetrator and armed), Guevara, and Elrick arrived at Defendant's home for a knock-and-talk at about 1900 on 04 Dec 2004. Before knocking, the officers could see Defendant and other persons through the window. The officers then saw one person look up and then speak to other persons, some of whom moved to back rooms.

Defendant answered the knock and consented to the officers' entry. Officer Phel asked Defendant about his relationship with the female juvenile (who was in the house at the time) while Officers Guevara and Elrick, seeing other people in the back rooms, conducted a protective sweep of the house to return everybody to the front room. Officer Elrick told the others that a clear bag containing a box of shotgun shells was in plain view on a bedroom closet shelf. Officer Guevara advised Defendant that he did not have to answer, but asked him specifically, "Is there a shotgun in the house? Where's the shotgun at?" Defendant said there was a shotgun under the mattress in the same bedroom as the shotgun shells, and Officer Guevara found it there, noticing that it appeared to have an illegally short barrel.

Officer Phel continued questioning Defendant, who became uncooperative, and Officer Phel handcuffed Defendant, telling him he was under arrest for possessing an illegal weapon and for charges related to his juvenile girlfriend. No officer knew in advance that Defendant was illegally in the United States and therefore could not legally possess firearms or ammunition. Officer Phel testified that he did not intent to arrest Defendant until after discovering the short-barrel shotgun. About five minutes elapsed from entry to arrest. Five to ten minutes after arrest, an ATF agent arrived and Mirandized Defendant, who then made incriminating statements.

PROCEDURE: The United States indicted Defendant for possession of an unregistered firearm under the National Firearms Act, 26 U.S.C. §§ 5841, 5681(d), 5871, and being an illegal alien in possession of a firearm, 18 U.S.C. §§ 922(g)(5), 924(a)(2). Defendant moved to suppress the shotgun and shells and all statements he made as fruits of the poisonous tree of illegal search. The District Court agreed that the protective sweep was an unreasonable search under the Fourth Amendment and therefore illegal, but ruled that independent sources prior to the sweep gave officers probable cause to arrest Defendant, and that Defendant validly consented to entry and voluntarily made incriminating statements. SUPPRESSION DENIED. A jury convicted Defendant as charged and the court sentenced him to 46 months. He appealed, arguing that the lack of intent to arrest him before the sweep meant that it could not have been incident to arrest. The United States argued for reversal of Tenth Circuit precedent limiting protective sweeps to incidents of arrest, noting that officer safety can be at risk regardless of whether anyone is arrested.

DECISION: Before walking up to Defendant's house, the officers had objective probable cause to arrest him for abusing his juvenile girlfriend, so their subjective intentions not to arrest were irrelevant. Defendant voluntarily let the officers in and answered questions without being restrained, but once Defendant understood the nature of the officers' visit, he could have gotten violent, and the officers knew he kept weapons. All this added up to reasonable suspicion justifying a protective sweep so long as it was incident to arrest, but even though the Tenth Circuit (and the Eighth Circuit, and one panel of the Ninth) require arrest to justify a protective sweep (and measure "incident to" primarily by the time elapsed between sweep and arrest), and even assuming the sweep here was not incident to arrest, the sweep was not the "but for" key to finding the evidence.

Whether or not they saw any weapons or ammunition, reasonable officers forewarned of potential armed domestic violence would have asked Defendant if there were any weapons in the house, and then asked for permission to search. That is exactly what these officers did, and Defendant consented to search. Though Defendant argued that questions about the shotgun did not begin until after Officer Elrick said he found the shells, the officers did not know that Defendant was an illegal alien, or that the shells belonged to Defendant, or that the shotgun associated with them had a short barrel, so the statement was not designed to elicit incriminating statements. Inevitably, officers would have found the shotgun. Defendant's post-arrest, post-Miranda statements to the ATF agent were also part of the inevitable discovery chain. The Tenth Circuit never reached the question of whether protective sweeps must still be incident to arrest. Denial of suppression, conviction, and sentence AFFIRMED in all respects.

EDITORIAL: Man, my head is hurting from all these whifferdills that the Tenth Circuit went through to justify what everybody else considers no-brainer officer safety tactics. We got a good decision in the end, but I don't like this business of calling a spade a shovel and then saying you can use shovels but not spades. For those who were wondering what exactly is a "firearm" and what is it doing in the Internal Revenue Code (Title 26) instead of the federal criminal code (Title 18), this is part of the National Firearms Act of 1933, which defines "firearms" as machine guns, grenades, silencers, sawed-off shotguns, etc. (they never let us have ANY fun). NFA didn't make anything illegal; it just required such stuff, also known as "Class 3" weapons, to be registered with what is now the Bureau of Alcohol, Tobacco, Firearms, and Explosives (all the things that make life worth living), or ATF for short, and also slapped a $200 transfer or manufacture tax on them. Although new machine guns can't be registered anymore, many other NFA toys can be, including sawed-off shotguns. Criminals, of course, can't be bothered with such bureacratic impediments, so they get convicted under this statute not for possessing "firearms" but for not registering them--same difference. I of course think NFA restrictions are hooey because the facts show machine guns etc. to be the LEAST likely types of weapons to be used in crime. But the lemonade of this lemon is that we can use NFA to really hammer the real criminals.