United States v. Keefauver ( 2015 )

UNITED STATES, Appellee
v.
Levi A. KEEFAUVER, Specialist
U.S. Army, Appellant
No. 15-0029
Crim. App. Dkt. No. 20121026
United States Court of Appeals for the Armed Forces
Argued April 15, 2015
Decided June 12, 2015
RYAN, J., delivered the opinion of the Court, in which BAKER
C.J., and ERDMANN, STUCKY, and OHLSON, JJ., joined.
Counsel
For Appellant: Captain Patrick J. Scudieri (argued); Lieutenant
Colonel Jonathan F. Potter, Colonel Kevin Boyle, and Major Amy
E. Nieman (on brief).
For Appellee: Captain Benjamin W. Hogan (argued); Major A. G.
Courie III and Colonel John P. Carrell (on brief); Major Daniel
Derner.
Amicus Curiae for Appellant: Curtis J. Hinca (law student)
(argued); Catherine E. White (law student) and Steven H. Wright,
Esq. (supervising attorney) (on brief) - University of Wisconsin
Law School.
Amicus Curiae for Appellee: Veronica Sustic (law student)
(argued); Jake Blair (law student) and John A. Pray, Esq.
(supervising attorney) (on brief) - University of Wisconsin Law
School.
Military Judges: Timothy Grammel and Steven Walburn
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Keefauver, No. 15-0029/AR
Judge RYAN delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted Appellant, contrary to his pleas, of two
specifications of violating of a lawful general regulation by
wrongfully possessing drug paraphernalia and unregistered
weapons on post, one specification of wrongful possession of
marijuana, and one specification of child endangerment in
violation of Articles 92, 112a, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a, 934 (2006).
Appellant was sentenced to a bad-conduct discharge, four years’
confinement, forfeiture of all pay and allowances, and reduction
to the grade of E–1. The convening authority approved the
sentence as adjudged.
The United States Army Court of Criminal Appeals (ACCA)
reviewed the case pursuant to Article 66, UCMJ, 10 U.S.C. § 866
(2012), and affirmed.1 United States v. Keefauver, 73 M.J. 846,
848, 858 (A. Ct. Crim. App. 2014). We granted Appellant’s
petition to review the following issue only:
WHETHER THE ARMY COURT ERRED IN FINDING THE PROTECTIVE
SWEEP WAS APPROPRIATE IN TOTAL.
1
Oral argument in this case was heard at University of Wisconsin
Law School, Madison, Wisconsin, as part of the Court’s “Project
Outreach.” See United States v. Mahoney, 58 M.J. 346, 347 n.1
(C.A.A.F. 2003). This practice was developed as part of a
public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.
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We hold that the military judge and ACCA erred in upholding
the protective sweep. As both the evidence in support of the
bulk of the charges and the entirety of the ACCA’s opinion are
inextricably intertwined with the protective sweep of
Appellant’s home, we reverse the ACCA and remand for further
proceedings consistent with this opinion.
I. FACTS
On December 8, 2011, between 7:30 a.m. and 7:45 a.m.,
postal inspectors at the Louisville, Kentucky, postal processing
center notified Inspector Steven Lamp in Bowling Green,
Kentucky, that they had discovered a suspicious, heavily taped
box that smelled of marijuana. They transported the package to
Bowling Green, where Inspector Lamp determined, based on his
training and experience, that the box, measuring fifteen inches
by twelve inches by ten inches and weighing eight pounds, likely
contained marijuana. He determined that no one by the sender’s
name, “B. Samuelson,” currently resided at the California return
address, but that Appellant and his wife, to whose joint
residence the package was addressed, had previously claimed that
California address as their own. Because the package was
addressed to a Fort Campbell address, Inspector Lamp notified
the Criminal Investigation Command (CID) office’s Drug
Suppression Team Chief, Special Agent (SA) Steven Roche. At SA
Roche’s request, Inspector Lamp and two other inspectors
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transported the package to Fort Campbell, joining SA Roche at
CID by late morning.
At approximately 11:00 a.m., SA Roche obtained verbal
authorization from Captain (CPT) Mark Robinson, the military
magistrate, to conduct a “controlled delivery,” whereby a postal
inspector would pose as the regular mail carrier and agents
would enter the house after the package was taken inside to
seize the box and search the room or immediate area in which it
was found.2 At approximately 1:00 p.m. at CID, a military
working dog (MWD) “alerted on the box,” confirming it likely
contained a controlled substance. Agents took the package from
CID to the Fort Campbell Post Office, where it was scanned as
having arrived at 1:14 p.m. SA Roche then arranged for
surveillance teams in front of and behind Appellant’s house as
well as down the street.
Agents knew four persons lived at the address -- Appellant;
his wife; his sixteen-year-old stepson, TC-D; and his thirteen-
year-old son, EK -- but that none had been seen entering or
exiting since surveillance began. They also knew that no one at
the address had a firearm registered in his or her name.
2
The confusion over the exact terms and parameters of CPT
Robinson’s verbal authorization at trial highlights the danger
of using a verbal rather than a written authorization to search.
The record supports the military judge’s finding that the
authorization was limited to the box itself. United States v.
Burris, 21 M.J. 140, 144 (C.M.A. 1985).
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A postal investigator made the controlled delivery at 2:36
p.m., first knocking on the door, then, when no one answered,
leaving the package on the porch next to the front door. The
package remained on the porch until TC-D arrived home at 3:20
p.m. and took it inside. Shortly thereafter, CID agents and
postal inspectors moved in, knocking on the front door. When
TC-D answered the door, agents informed him that they would be
conducting a search. In response, TC-D became verbally abusive.
Agents asked TC-D to step outside, where they handcuffed him and
seated him next to the garage. SA Roche entered the home and
found the package in the hallway, ten feet from the entrance.
He noticed a strong odor of marijuana in the house.3 SA Roche
conducted what he characterized as a “security sweep” of the
entire house. While sweeping the kitchen, SA Roche saw drug
paraphernalia on the counter. On the second floor, SA Roche
discovered a bag of what appeared to be marijuana as well as
additional drug paraphernalia in TC-D’s room, rifles in an
unlocked walk-in closet off the hallway, and suspicious boxes in
the master bedroom, all in plain view. Based on a
misunderstanding of the verbal search authorization, agents then
3
We did not grant the issue, and do not decide the question,
whether it was improper for the ACCA to consider evidence that
agents smelled marijuana in the house, which evidence was not
before the military judge when he ruled on the motion to exclude
evidence from the protective sweep. Resolution of that question
does not affect the outcome in this case.
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reentered the house and conducted a second, full search of the
home with MWDs.
Before trial, Appellant moved to suppress all evidence
other than the box of marijuana on the grounds that the search
authorization to seize it was defective in relation to the
search of his home. Appellant argued that the authorization to
do anything other than seize the package inside his home was not
based on probable cause, as the package was addressed to the
residence rather than its residents, and, moreover, that the
authorization failed to describe the place to be searched and
things to be seized with requisite particularity. Applying a
standard echoing Maryland v. Buie, 494 U.S. 325, 334 (1990), the
military judge denied the motion on the ground that the evidence
resulting from “the continued search of the house . . . beyond
what the magistrate had authorized” after the protective sweep
“would have inevitably been discovered,” as “there was
overwhelming evidence to support a request for search
authorization” based on the box’s delivery plus the “marijuana,
drug paraphernalia, and weapons in that residence” seen during
the protective sweep. In his view, the protective sweep was
proper because agents could reasonably have believed “an
individual or individuals who posed a danger to the agents may
have been hiding in the residence” given the quantity of
marijuana present and the inference that residents were engaging
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in drug distribution, as “[i]t is common knowledge that drug
trafficking involves violence, including the use of weapons.”
The military judge concluded that TC-D’s hostile response to the
agents’ announced intent to enter the house and conduct a search
supported this belief.
II. ACCA DECISION
The ACCA affirmed the ruling of the military judge that the
protective sweep was valid under Buie based on the facts that
the package containing marijuana was taken inside the home;
Appellant, his wife, and their two sons lived there; agents’
lack of information about the adults’ whereabouts; and TC-D’s
reaction to the agents’ presence. Keefauver, 73 M.J. at 853-54.
Moreover, the ACCA determined that expert testimony on the
suppression motion from Inspector Lamp asserting that “guns
follow drugs,” while it could not per se authorize a protective
sweep, could be considered by the military judge in conjunction
with the other facts. Id. at 853. The ACCA went on to hold
that evidence from the later post-sweep search of Appellant’s
house using MWDs was properly admitted under the inevitable
discovery doctrine because the drugs, weapons, and drug
paraphernalia observed during the protective sweep provided
agents with probable cause to seek a wider warrant. Id. at
854-57.
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III. DISCUSSION
“When reviewing a decision of a Court of Criminal Appeals
on a military judge’s ruling, ‘we typically have pierced through
that intermediate level’ and examined the military judge’s
ruling, then decided whether the Court of Criminal Appeals was
right or wrong in its examination of the military judge's
ruling.” United States v. Cabrera-Frattini, 65 M.J. 241, 246
(C.A.A.F. 2007) (quoting United States v. Shelton, 64 M.J. 32,
37 (C.A.A.F. 2006)) (quoting United States v. Siroky, 44 M.J.
394, 399 (C.A.A.F. 1996)) (internal quotation marks omitted).
This Court reviews a military judge’s decision to suppress
evidence for an abuse of discretion. United States v. Monroe,
52 M.J. 326, 330 (C.A.A.F. 2000) (citing United States v. Ayala,
43 M.J. 296, 298 (1995)). Fact-finding is reviewed under the
clearly erroneous standard while conclusions of law are reviewed
de novo. Id. “[W]e consider the evidence in the light most
favorable to the prevailing party.” United States v. Reister,
44 M.J. 409, 413 (C.A.A.F. 1996) (internal quotation marks
omitted). Whether facts in toto justify a protective sweep is a
question of law. See United States v. Scroggins, 599 F.3d 433,
440-41 (5th Cir. 2010); United States v. Cash, 378 F.3d 745, 747
(8th Cir. 2004); United States v. Gould, 364 F.3d 578, 592 n.16
(5th Cir. 2004), abrogated on other grounds by Kentucky v. King,
131 S. Ct. 1849 (2011). But see United States v. Hauk, 412 F.3d
8
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1179, 1185 (10th Cir. 2005) (mixed question of law and fact
reviewed de novo).
While we agree that the analysis in Buie may be properly
applied to a protective sweep incident to execution of a search
warrant for a home, we disagree that either of the two criteria
that Buie established were satisfied by the facts of this case.
A.
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const. amend. IV. In Buie, the Supreme Court created an
exception to the Fourth Amendment for a “protective sweep,”
which is “a quick and limited search of premises, incident to
arrest and conducted to protect the safety of police officers or
others.” 494 U.S. at 327. Buie acknowledged two types of
protective sweeps. In the first type of sweep, which may be
conducted “as a precautionary matter and without probable cause
or reasonable suspicion,” agents may search only “closets and
other spaces immediately adjoining the place of arrest from
which an attack could be immediately launched” during or after
an arrest. Id. at 334. The second, more extensive Buie
exception permits agents to make a protective sweep of areas
beyond those immediately adjoining the place of arrest where
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United States v. Keefauver, No. 15-0029/AR
“articulable facts . . . 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. “[S]uch a protective sweep, aimed at protecting the
arresting officers, if justified by the circumstances, is
nevertheless not a full search of the premises, but may extend
only to a cursory inspection of those spaces where a person may
be found.” Id. at 335.
Buie analyzed the constitutional permissibility of a
protective sweep in the context of arrest only, reasoning that
in-home arrests create special dangers by placing agents on an
“adversary’s ‘turf’” and exposing them to the unique threat of
“[a]n ambush in a confined setting of unknown configuration.”
Id. at 333. The Court noted, “[a] protective sweep . . . occurs
as an adjunct to the serious step of taking a person into
custody for the purpose of prosecuting him.” Id.
This Court has not elsewhere addressed the question whether
the protective sweep doctrine applies beyond the context of an
in-home arrest. Cf. United States v. Khamsouk, 57 M.J. 282, 304
(C.A.A.F. 2002). However, a majority of federal circuit courts
have held that agents entering a home lawfully for an objective
other than arrest may make a protective sweep so long as the
Buie criteria are met. In their view, the same concerns
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United States v. Keefauver, No. 15-0029/AR
underlying officer safety in the context of an in-home arrest
may pertain in equal measure when agents lawfully enter a home
for some other purpose. See, e.g., United States v. Starnes,
741 F.3d 804, 810-11 (7th Cir. 2013); United States v.
Caraballo, 595 F.3d 1214, 1225 (11th Cir. 2010); United States
v. Miller, 430 F.3d 93, 99-100 (2d Cir. 2005); United States v.
Martins, 413 F.3d 139, 150 (1st Cir. 2005); Leaf v. Shelnutt,
400 F.3d 1070, 1086-87 (7th Cir. 2005); Gould, 364 F.3d at 584;
United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001);
United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993);
United States v. Patrick, 959 F.2d 991, 996-97 (D.C. Cir. 1992),
abrogated on other grounds by United States v. Webb, 255 F.3d
890 (D.C. Cir. 2001). Only the Tenth Circuit and one panel of
the Ninth Circuit have read Buie so narrowly as to limit the
protective sweep doctrine to in-home arrests only. See United
States v. Davis, 290 F.3d 1239, 1242 n.4 (10th Cir. 2002);
United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000).
These cases place great interpretive weight on Buie’s focus on
in-home arrests, 494 U.S. at 333-36, and its definition of a
protective sweep as “incident to an arrest.” Id. at 327.
Without question, the minority view is correct that Buie
specifically addressed only the facts of that case, surrounding
a protective sweep incident to an in-home arrest. This does
not, however, preclude application of Buie’s rationale to other
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United States v. Keefauver, No. 15-0029/AR
circumstances when consonant with, and a consistent extension
of, Buie. See Miller, 430 F.3d at 99 (“Buie’s logic therefore
applies with equal force when officers are lawfully present in a
home for purposes other than the in-home execution of an arrest
warrant . . . .”). We agree with the majority of federal
circuits that, as with an arrest, executing a search warrant in
a home can present the dangers upon which the rationale of Buie
was based, as it, too, places agents on the occupant’s “turf,”
at a disadvantage, and is an adjunct to a “serious step,” since
probable cause to conduct a search for evidence has been
established and may result in arrest and prosecution. Buie, 494
U.S. at 333.
B.
While we thus squarely hold that, under Buie, agents
entering a home lawfully may be entitled to make the second,
more extensive type of protective sweep to ensure their safety,
this extension of Buie to non-arrest situations should not be
mistaken for a liberalization of the criteria required before
such a sweep is constitutionally permissible. The fact that
agents may conduct a protective sweep incident to a lawful entry
under Buie so long as the sweep does not last longer “than is
necessary to dispel the reasonable suspicion of danger,” id. at
336, does not answer the altogether different question whether
any facts supported the belief that there were people other than
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United States v. Keefauver, No. 15-0029/AR
TC-D present in the home in this case and, if so, that they
presented a danger to the agents. We conclude that the facts
here did not and that, absent such facts, the extensive
protective sweep conducted of the entire home was not warranted.
The circumstances under which facts warrant an extensive
protective sweep are specific. Id. at 327, 334. Buie notes
that this broader protective sweep exception applies only “if
the searching officer ‘possess[ed] a reasonable belief based on
“specific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warrant[ed]”
the officer in believing’ that the area swept harbored an
individual posing a danger to the officer or others.” 494 U.S.
at 327 (quoting Michigan v. Long, 463 U.S. 1032, 1049–50 (1983))
(quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)) (brackets in
original) (emphasis added); see United States v. Ford, 56 F.3d
265, 269 n.3 (D.C. Cir. 1995) (interpreting Buie to require the
lower court to determine “whether the searching officer
possessed ‘a reasonable belief based on specific and articulable
facts that the area to be swept harbors an individual posing a
danger to those on the arrest scene’” on remand). The opinion
goes on to test this belief against an objective standard,
requiring also that “articulable facts . . . taken together with
the rational inferences from those facts . . . would warrant a
reasonably prudent officer in believing that the area to be
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swept harbors an individual posing a danger to those on the
arrest scene.” Buie, 494 U.S. at 334 (emphasis added). The
objective standard echoes Terry. 392 U.S. at 21-22 (noting “it
is imperative that the facts [used to justify a search or
seizure] be judged against an objective standard: would the
facts available to the officer at the moment of the seizure or
the search ‘warrant a man of reasonable caution in the belief’
that the action taken was appropriate?”). See, e.g., Miller,
430 F.3d at 98 (“At the core of Terry, Long and Buie is the
common understanding that the Fourth Amendment's reasonableness
requirement is sufficiently flexible to allow officers who have
an objectively credible fear of danger to take basic precautions
to protect themselves.”); United States v. Garza, 125 F. App’x
927, 931 (10th Cir. 2005) (“The Fourth Amendment allows a
protective sweep if police have ‘a reasonable belief based on
specific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warrant[s] the
officer in believing that the area swept harbor[s] an individual
posing a danger to the officer or others.’” (alterations in
original) (internal citations and quotation marks omitted));
United States v. Biggs, 70 F.3d 913, 915 (6th Cir. 1995)
(requiring searching agents to “articulate facts that would
warrant a reasonably prudent officer to believe that the area to
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United States v. Keefauver, No. 15-0029/AR
be swept harbored an individual posing a danger to those on the
scene”).
It is thus eminently clear both that a protective sweep of
the home “is decidedly not ‘automati[c],’” Buie, 494 U.S. at
336, and that the facts in this case fail the test laid out in
Buie. A protective sweep of the home requires specific,
articulable facts and rational inferences from those facts
supporting two beliefs: (1) that the areas to be swept harbor
one or more individuals and (2) that the individual or
individuals pose a danger to the agents or others. Id. at 334.
The Government did not attempt to prove that the searching
officer held either such belief, nor did it present facts and
inferences that would objectively support either such belief.
The searching officer, SA Roche, did not testify that he
believed at any point that additional individuals were present
and dangerous. Rather, in perfect opposition to Buie’s caution
against “automatic” sweeps, SA Roche stated the sweep was
“standard procedure.” While an officer’s mistake of law may
sometimes bear on a potential Fourth Amendment violation, Heien
v. North Carolina, 135 S. Ct. 530 (2014), that is not the case
here. “The Fourth Amendment tolerates only reasonable mistakes,
and those mistakes . . . must be objectively reasonable.” Id.
at 539. Unlike the North Carolina statute at issue in Heien,
id. at 540, Buie’s requirements and its prohibition against
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United States v. Keefauver, No. 15-0029/AR
automatic sweeps are unambiguous. Any mistake of law on the
part of SA Roche was not objectively reasonable. Moreover, in
Heien, the officer’s “mistake of law relate[d] to the antecedent
question of” reasonable suspicion for a stop, not the search
itself, which was done with the appellant’s consent. Id. at
539. “An officer’s mistaken view that the conduct at issue did
not give rise to . . . a [Fourth Amendment] violation -- no
matter how reasonable -- could not change that ultimate
conclusion.” Id.
And assuming arguendo that SA Roche had testified to an
articulable actual fear, we disagree with both the military
judge and the ACCA that the facts presented, even viewed in the
light most favorable to the Government, objectively supported a
protective sweep of the home. Rather, the available facts
supported only the reasonable inference that no one but TC-D was
home that afternoon: Appellant was employed on base; no one
testified that they saw anyone enter or exit the home during a
period of surveillance of at least one hour prior to the
delivery of the package; no one answered the door prior to TC-
D’s arrival, id.; and an eight-pound package containing a
valuable, illicit substance was left outside for an hour. And
during the motions hearing, Inspector Lamp in fact testified to
his own inference from these facts that “nobody was home.” In
this context, lack of knowledge of the other inhabitants’
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United States v. Keefauver, No. 15-0029/AR
whereabouts did not provide an affirmative basis for conducting
a protective sweep. See United States v. Colbert, 76 F.3d 773,
778 (6th Cir. 1996); United States v. Hogan, 38 F.3d 1148, 1150
(10th Cir. 1994); see also United States v. Delgadillo–
Velasquez, 856 F.2d 1292, 1298 (9th Cir. 1988).
Given the absence of facts supporting the antecedent belief
required by the first prong of Buie, that there was another
person present in the home, 494 U.S. at 334, the second prong of
Buie, which requires articulable facts supporting the belief
that the “individual pos[es] a danger to those on the arrest
scene,” id., necessarily fails. We nonetheless make clear that,
contrary to the belief of the military judge, the presence or
suspected presence of drugs without more does not justify a
sweep, see, e.g., United States v. Watson, 273 F.3d 599, 603
(5th Cir. 2001), nor does the bare conjecture and bald assertion
that “guns follow drugs,” without additional facts. See Taylor,
248 F.3d at 514 (citing United States v. Hatcher, 680 F.2d 438,
444 (6th Cir. 1982)). To suggest, as the military judge did,
that the mere presence of drugs justifies a protective sweep of
the entire home would effectively eviscerate the exception to
the Fourth Amendment contemplated by Buie, which was based
entirely on the danger to agents. 494 U.S. at 327, 333-34. We
decline to create so broad an exception to the Fourth Amendment.
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The Government nonetheless argued at oral argument that a
verbally hostile teenager and the odor of marijuana alone
justified a rational inference both that other people were
present and that they presented a danger to agents. We cannot
agree. In light of the other facts suggesting no one else was
home, TC-D’s adverse reaction to officers’ stated intention to
search without more did not support a reasonable inference that
other individuals were present, nor, even if they were, that
they presented a danger to agents.4 TC-D was quickly handcuffed
and removed from the house, and he presented no danger to
agents. Nor, even were we to consider it, does the lingering
odor of marijuana smoke, without more, support a belief that
others were present.
Most tellingly, even if one credits the notion that a
hostile teenager and the smell of marijuana could create a
reasonable inference that others were present under the facts of
this case, absolutely no facts supported an inference of a
potential for danger or violence, as has been true in other
cases in which protective sweeps have been upheld. Agents
neither knew of nor encountered unsecured pit bulls, Starnes,
741 F.3d at 806-07; no Lincoln Navigators linkable to known gang
4
Although TC-D’s statements could have alerted another person to
the officers’ presence and intent to search, leading to an
attempt to destroy evidence, the potential destruction of
evidence is not a justification for a Buie sweep, which is
permissible only for safety reasons. 494 U.S. at 327.
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members were parked outside the home, United States v. Tapia,
610 F.3d 505, 507 (7th Cir. 2010), as amended on denial of
reh’g, No. 09-1426, 2010 U.S. App. LEXIS 27517, at *1 (7th Cir.
Aug. 16, 2010); and no recent and unexplained gunfire was likely
to either alert anyone present and potentially dangerous that
agents might soon arrive or cause them to otherwise be on alert.
United States v. Parrott, 450 F. App’x 228, 230 (3d Cir. 2011);
United States v. Tisdale, 921 F.2d 1095, 1097 (10th Cir. 1990).
Rather, the inverse is true: Appellant lived on a military
base, not in a high-crime neighborhood or within a known gang
war zone, even were such a setting enough to justify this
exception to the Fourth Amendment, a question on which we
express no opinion. See generally United States v. Martins, 413
F.3d 139, 150 (1st Cir. 2005) (holding agents could consider
area to justify sweep where “the inference of danger was much
more real and immediate than a generic fear of what might happen
in a high-crime area”); United States v. Atlas, 94 F.3d 447,
450-51 (8th Cir. 1996) (upholding a protective sweep in a
“dangerous neighborhood, one that was high in gang activity” and
noting “an area’s propensity toward criminal activity is
something that an officer may consider” along with other factors
(citation omitted)); United States v. Burrows, 48 F.3d 1011,
1016 (7th Cir. 1995) (holding that while “[a] protective sweep
is not justified simply because an area is ‘poor’ or a ‘housing
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United States v. Keefauver, No. 15-0029/AR
project’” the area may be relevant where it “has been the recent
scene of other violence or civil strife aimed at law enforcement
officers” or “there are other articulable reasons for believing
that . . . the area presents a real threat”); United States v.
Richards, 937 F.2d 1287, 1291 (7th Cir. 1991) (upholding a
protective sweep of an apartment in “one of the most violent and
dangerous [neighborhoods] in East St. Louis” where the
reputation of the area was one of several factors). The
rational inference for agents to make about a home on a military
base would be of safety, rather than risk.
The ACCA erred in affirming the holding of the military
judge with respect to the protective sweep. As our holding
eliminates the basis on which the ACCA found probable cause
existed to conduct the MWD search of the house after the sweep,
any review of the inevitable discovery doctrine must be
undertaken without respect to the fruits of the sweep. Although
we did not grant, and thus do not decide, the question of the
application of the inevitable discovery doctrine to the
remaining evidence, we stress that “the inevitable discovery
doctrine cannot rescue evidence obtained via an unlawful search
simply because probable cause existed to obtain a warrant when
the government presents no evidence that the police would have
obtained a warrant.” United States v. Wicks, 73 M.J. 93, 103
(C.A.A.F. 2014) (internal quotation marks omitted).
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IV. DECISION
The decision of the United States Army Court of Criminal
Appeals is reversed. The record of trial is returned to the
Judge Advocate General for remand to that court for further
action consistent with our resolution of the granted issue.
21