United States v. Delgado-Perez , 867 F.3d 244 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2247
UNITED STATES OF AMERICA,
Appellee,
v.
RAMÓN DELGADO-PÉREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Lipez, and Barron,
Circuit Judges.
Edwin Edgardo León-León for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief, for appellee.
August 16, 2017
BARRON, Circuit Judge. Ramón Delgado-Pérez ("Delgado")
pleaded guilty to being a prohibited person in knowing possession
of a firearm or ammunition, in violation of 18 U.S.C. § 922(g).
In doing so, however, Delgado reserved his right to challenge, on
appeal, the denial of his motion to suppress certain evidence,
including the loaded firearm mentioned in the indictment, found
when law enforcement searched his home. He now contends that his
conviction must be overturned because the District Court erred in
denying that motion. We agree, and so we reverse and remand.
I.
Under 18 U.S.C. § 922(g), it is a crime for certain
individuals "to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has been
shipped or transported in interstate or foreign commerce." Section
922(g)(1) defines persons covered by this prohibition as those
"who ha[ve] been convicted in any court of[] a crime punishable by
imprisonment for a term exceeding one year."
On February 26, 2014, Delgado was indicted in the
District of Puerto Rico for being in knowing possession of a loaded
firearm, in violation of § 922(g), by virtue of his previous
conviction for a crime punishable by imprisonment of a term
exceeding one year. Specifically, the indictment charged Delgado
with violating § 922(g) because Delgado possessed a "Sig Sauer"
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pistol loaded with ten rounds of nine-millimeter caliber
ammunition.
Following the indictment, Delgado pleaded not guilty.
But, he later changed his plea to guilty. Prior to changing his
plea, however, Delgado filed a motion to suppress evidence
recovered "in violation of the U.S. Constitution and any fruits
recovered thereof."
Delgado argued in his suppression motion that the search
of his residence that turned up the loaded firearm referenced in
the indictment violated the Fourth Amendment because he never
consented to a search of his residence, the evidence seized was
not in plain view, and no other exigent circumstances justified
the search of the residence. The government, in its opposition to
Delgado's motion, contended that the motion should be denied
because Delgado voluntarily consented to the search of his
residence and because, alternatively, the officers acted in good
faith in undertaking the non-consensual warrantless search of his
home.
A magistrate judge conducted a hearing on the
suppression issue, which was held over the course of two days:
October 22, 2014, and November 10, 2014. In the Magistrate Judge's
report and recommendation following the hearing, the Magistrate
Judge described the events that transpired as follows.
-3-
On February 20, 2014, at least a dozen law enforcement
officers arrived at Delgado's residence in Puerto Rico with a New
York state warrant for his arrest for trafficking cocaine through
the United States mail. When the officers arrived outside
Delgado's residence and announced their presence, there was
initially no answer. The officers began to open a rebar gate
outside the residence, at which point Delgado opened a window and
told the officers, through the window, that he was home and was
going to open the door. Delgado retrieved a key, came outside,
opened the rebar gate for the officers and indicated to the
officers that he was by himself.
Once Delgado was outside, the officers undertook a
protective sweep of the residence, which, according to one officer,
is their standard practice to ensure officer safety and prevent
destruction of evidence. An officer also testified that, while
Delgado told the officers there was no one else present in the
home, the officers did not take his word and "had to verify that
there was no one else in the residence who could harm them." The
agents knew that Delgado was a convicted felon and drug trafficker,
and that "drug trafficking goes hand in hand with weapons." There
were security cameras that could permit someone inside the house
to watch the movements of the officers, and the configuration of
Delgado's house included an apartment on the premises and a locked
rebar fence and gate outside of the house.
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During the protective sweep, the officers noticed a
firearm magazine on top of a dresser in a room off of an interior
hallway. Once the sweep concluded, an officer asked Delgado if
there were any firearms in the residence, to which Delgado
responded in the affirmative and told the officer he had a firearm
and provided its location -- a dresser drawer. An officer
retrieved a loaded firearm -- the Sig Sauer referenced in the
indictment -- from inside the dresser drawer and rendered it safe.
An officer then asked Delgado for consent to search the
residence. Delgado consented to the search verbally, but he
declined to sign a consent form.
The Magistrate Judge based the above-recited findings on
hearing testimony provided by two United States Postal Inspection
Service officers, which the Magistrate Judge determined to be
credible. On the basis of "the above summarized scenario and
circumstances" reflected in the officers' testimony, the
Magistrate Judge concluded that the protective sweep was
justified. Thus, the Magistrate Judge found that the magazine
found on the dresser during the protective sweep need not be
suppressed.
The Magistrate Judge also found that, based on the
magazine recovered during the protective sweep, it was
"reasonabl[e]" for law enforcement to "infer[] the firearm could
be inside the residence and accessible to someone else inside the
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house." The Magistrate Judge thus concluded that "it was
reasonable for the agents," after Delgado told them of the
firearm's location, to seize it from the dresser and render it
safe.
In addition, the Magistrate Judge found that, following
the protective sweep, Delgado consented to the search of the full
residence. In so concluding, the Magistrate Judge determined that
the two officers' mutually consistent testimony was more credible
than Delgado's. And the Magistrate Judge found that Delgado's
consent was not the product of coercion.
The Magistrate Judge advised the parties that "failure
to file [objections] within the specified time waives the right to
appeal this order," based on local rules applicable in the District
of Puerto Rico. See D.P.R. Civ. R. 72(d). Neither party so
objected. Several months later, the District Court adopted the
Magistrate Judge's report and recommendation and denied Delgado's
motion to suppress.
On June 16, 2015, Delgado pleaded guilty to violating 18
U.S.C. § 922(g). At the change of plea hearing, the District Court
recognized that Delgado was, in pleading guilty, reserving the
right to appeal the denial of his motion to suppress.
The District Court sentenced Delgado to time served,
ordered three years of supervised release, and ordered the
forfeiture of the loaded firearm described in the indictment. This
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appeal followed. In addition to his counsel's brief to us, in
which Delgado challenged his conviction on the ground that he did
not consent to "the search of his residence and its premises"
following the protective sweep, Delgado also filed a pro se
supplemental brief. In his pro se supplemental brief, Delgado
challenges the lawfulness of the protective sweep and contends
that both the magazine and the loaded firearm must be suppressed
as fruits of that unlawful sweep.1
II.
Before turning to the merits of the contentions that
Delgado makes on appeal, we first consider whether Delgado waived
his right to make them on appeal. And that consideration requires
us to address in some detail what happened at the change of plea
hearing.
A.
The Magistrate Judge's report and recommendation warned
that failure by either party to file objections to the report and
recommendation "waives the right to appeal this order." The
government thus argues that, because Delgado failed to object to
the report and recommendation, he waived his right to raise this
challenge on appeal to the District Court's order denying his
1 When we refer to arguments that Delgado makes on appeal, we
account for the arguments contained both in his counsel's brief
and in his pro se supplemental brief.
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motion to suppress, given that the order adopts the report and
recommendation. And, as the government points out, Delgado makes
no argument to the contrary in his opening brief.
Ordinarily, the government would be right that Delgado's
failure to object to the report and recommendation -- followed by
his failure to address that failure in his briefing to us -- would
preclude his appeal. See United States v. Valencia-Copete, 792
F.2d 4, 6 (1st Cir. 1986) ("[F]ailure to file within the time
allowed waives the right to appeal the district court's order.").
But, here, we deal with an unusual circumstance that requires a
different conclusion.
At Delgado's change-of-plea hearing, the District Court
first confirmed to Delgado's attorney that "the opinion and order
of the magistrate judge, and the report and recommendation, and
the opinion of the [District] Court" regarding "the legal issue as
to the alleged illegality of the weapon [] seized at the moment of
the arrest" would be "reserved . . . for an appeal." The District
Court then told Delgado that Delgado was "reserv[ing] the right to
challenge the decision of the magistrate judge . . . and the
affirmance of that decision [by] the [District] Court not granting
your challenge to the suppression of the weapon that was found in
your residence at your arrest." Later in the change-of-plea
hearing, the District Court reiterated to Delgado four more times
that Delgado had reserved the right to appeal the suppression
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issue, telling him, "[Y]ou can challenge the report and
recommendation of the magistrate and the Court's order affirming
the report and recommendation as to the suppression of the weapon,"
"[Y]ou retain as a condition to the plea, the right to challenge
the decision of the magistrate judge and the [District] Court as
to the suppression of the weapon"; "[Y]ou retain the ability to
challenge the facts relating to the suppression of the weapon";
and "You will always be able to challenge the weapon suppression
issue."
The District Court then told the Assistant United States
Attorney ("AUSA") that, despite Delgado pleading guilty, Delgado
was "challenging the determination of the [District] Court
relating to the suppression of the weapon." In response, the AUSA
answered "[t]hat is correct," without elaboration. And, when asked
if the government wanted the District Court to "make a further
explanation of the reservation," the AUSA declined, and did not
mention that Delgado failed to object to the report and
recommendation. The AUSA instead made a factual clarification,
relevant only to the merits of the suppression issue, about where
the magazine and loaded firearm were each found.
Thus, the government never articulated to either Delgado
or to the District Court, prior to Delgado entering his plea, its
present position. That position, stated for the first time in the
government's brief on appeal in response to Delgado's, is that
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Delgado waived his right to challenge the suppression ruling by
failing to object to the report and recommendation,
notwithstanding that Delgado plainly pleaded guilty on the
understanding, expressly shared by the District Court and
seemingly accepted by the government, that Delgado could appeal
the suppression ruling.
We have explained before, however, that, by failing to
raise an argument that a defendant's failure to take some action
below waives that defendant's right to raise an issue on appeal,
the government may waive the waiver argument. See United States
v. Román-Huertas, 848 F.3d 72, 76-77 (1st Cir. 2017); see also
Barreto–Barreto v. United States, 551 F.3d 95, 98 (1st Cir. 2008).
And we do not see why this case is not of a similar kind, given
what Delgado and the District Court said at the change of plea
hearing and that the government said nothing to suggest otherwise
at the hearing. In fact, at the hearing the government even
addressed the merits of the ruling it now contends was supposedly
at that point already unchallengeable.2 We thus proceed to the
merits.
2
The government does cite to two unpublished, out-of-circuit
cases that have held that defendants waived the right to appeal
district courts' decisions on suppression motions by not objecting
to the report and recommendation filed in their respective cases.
See United States v. Cagle, 314 F. App'x. 617 (4th Cir. 2009);
United States v. Buckbee, 3 F. App'x. 563 (7th Cir. 2001). But
Cagle simply held that a defendant waived a particular argument
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B.
With respect to the merits of Delgado's challenge, we
ordinarily "review[] a district court's legal conclusions involved
in denying a motion to suppress the evidence de novo and its
findings of fact for clear error." United States v. Marshall, 348
F.3d 281, 284 (1st Cir. 2003). "On a motion to suppress evidence
seized on the basis of a warrantless search, the presumption favors
the defendant, and it is the government's burden to demonstrate
the legitimacy of the search." United States v. Winston, 444 F.3d
115, 123–24 (1st Cir. 2006).3
because he failed to object to a magistrate judge’s report and
recommendation, where the defendant had never been given any reason
to believe that he had, in fact, preserved the issue for appeal.
314 F. App'x. at 618. Thus, Cagle does not appear to implicate
the notice and fairness concerns that the record reveals are
implicated here. And, while Buckbee held that the defendant had
waived the right to appeal of the denial of his motion to suppress
by failing to object to the magistrate judge's report and
recommendation, the opinion provides no detail about the
particular facts and circumstances that suggest the case concerned
facts in any way analogous to our own.
3
As we will explain, we need not reach the factual finding
that Delgado contests on appeal, even assuming that, given the
District Court's representations about his right to contest the
factual findings in the report and recommendation on appeal, he
has not waived the right to do so by failing to raise that challenge
before the District Court. Cf. United States v. Lomeli, 676 F.3d
734, 738 (8th Cir. 2012) ("The rule in this circuit is that a
failure to object to a magistrate judge's report and recommendation
will not result in a [wholesale] waiver of the right to appeal
when the questions involved are questions of law or mixed questions
of law and fact." (alteration in original) (quotation marks and
citation omitted)); Jones v. Wood, 207 F.3d 557, 562 n.2 (9th Cir.
2000) ("Failure to object to a magistrate judge's recommendation
waives all objections to the judge's findings of fact. However,
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In evaluating the lawfulness of the various searches
that took place at Delgado's residence on February 20, the fruits
of which Delgado now challenges on appeal, we begin with the
protective sweep. The government argues on appeal, as it did
below, that the protective sweep was lawful in light of the
circumstances surrounding Delgado's arrest and thus, implicitly,
that none of the evidence recovered thereafter could be excluded
as the illegal fruit of that sweep. We do not agree.
The Fourth Amendment protects "[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." U.S. Const. amend. IV. The
Supreme Court has long held that "physical entry of the home is
the chief evil against which the wording of the Fourth Amendment
is directed." Payton v. New York, 445 U.S. 573, 585 (1980)
(quotation marks and citation omitted). "Because the prophylaxis
of the Fourth Amendment is at its zenith with respect to an
individual's home, a warrantless search of a private residence is
presumptively unreasonable unless one of a few well-delineated
exceptions applies." United States v. Infante, 701 F.3d 386, 392
(1st Cir. 2012) (quotation marks and citation omitted); see also
Payton, 445 U.S. at 586.
in this circuit, failure to object generally does not waive
objections to purely legal conclusions." (citation omitted)).
Thus, our only issues to resolve are ones of law.
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One of those exceptions, and the one at issue with
respect to the initial and indisputably non-consensual search of
Delgado's residence, is the exception for protective sweeps. The
Supreme Court set out the rules governing protective sweeps in
Maryland v. Buie, 494 U.S. 325 (1990).
A protective sweep is "a quick and limited search of
premises, incident to an arrest and conducted to protect the safety
of police officers or others," that "is narrowly confined to a
cursory visual inspection of those places in which a person might
be hiding." Id. at 327.4 Many protective sweeps take place
following an arrest within a home. We have also allowed protective
sweeps, however, when an arrest "occurs just outside the home,"
because such an arrest "can pose an equally serious threat to
arresting officers as one that occurs in the home." United States
v. Lawlor, 406 F.3d 37, 41 (1st Cir. 2005).
Buie instructs that a protective sweep is permissible
only where there are "articulable facts which, taken together with
4
A protective sweep is distinct from the types of searches
that law enforcement officers may conduct incident to an arrest,
which can extend only to "the arrestee's person and the area within
his immediate control." Chimel v. California, 395 U.S. 752, 763
(1969) (quotation marks omitted); see also Buie, 494 U.S. at 336
(citing Chimel, 395 U.S. 752). Delgado was arrested on his front
porch, and the evidence that he seeks to suppress was found in an
interior room of the home, rather than on his person or in an area
within his immediate control. Thus, the parties agree that we are
dealing with a protective sweep governed by the rules set forth in
Buie.
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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." Buie, 494 U.S. at 334. In applying this standard, we
evaluate protective sweeps using the same standard set out in Terry
v. Ohio, 392 U.S. 1 (1968): "would the facts available to the
officer at the moment of the . . . search warrant a man of
reasonable caution in the belief that the action taken was
appropriate?" Id. at 21-22 (quotation marks omitted); see also
Buie, 494 U.S. at 334; United States v. Daoust, 916 F.2d 757, 759
(1st Cir. 1990). "The reasonable suspicion standard is
considerably less demanding than the level of proof required to
support a finding of probable cause, but must be based on more
than an unfounded speculation." Winston, 444 F.3d at 118 (citation
omitted).
The government relies on three of our prior cases --
Winston, Lawlor, and Martins -- in which we have upheld protective
sweeps in contending that the sweep at issue here was lawful. But,
in each of those cases, the officers undertook the sweep with
knowledge of facts -- not present here -- that provided them with
an articulable reason to suspect that some person other than the
one arrested could be present in the residence and pose a danger
to officers.
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In Winston, 444 F.3d 115, for example, we upheld a
protective sweep based on several facts that gave officers reason
to believe dangerous persons might be present in the defendant's
residence. Specifically, the officers had particularized reason
to believe that the defendant was armed and dangerous. See id. at
118. The defendant had also been indicted along with twenty-five
others, so officers had reason to believe that he had "numerous,
potentially armed and dangerous cohorts." Id. at 119. And, after
officers initially knocked on Winston's front door, Winston's
girlfriend referred them to a neighboring residence, which the
officers visited before subsequently returning to Winston's
residence. This deception, we found, "gave any potential occupants
inside the house five minutes to conceal themselves or prepare an
ambush." Id.
In United States v. Lawlor, 406 F.3d 37 (1st Cir. 2005),
we upheld a protective sweep of a residence when an officer had
received a report of a gunshot at the scene, believed that two
individuals lived in the residence and that those individuals were
engaged in drug-related activities, and had routinely observed
individuals coming and going from the residence. See id. at 42.
In addition, upon arriving at the residence the officer saw
"drunken combatants" and "spent shotgun shells" outside. Id.
And, similarly, in United States v. Martins, 413 F.3d
139 (1st Cir. 2005), we upheld a protective sweep of a residence
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where a number of facts gave rise to a reasonable belief that an
individual posing a danger to the officers might have been inside
the residence. Id. at 151. A shooting had just taken place within
100 yards of the residence. Id. at 150. One of the shooting
victims -- whom officers had reason to believe was a gang member
-- indicated that an associate of his was in the residence. Id.
at 150, 144. When the officer knocked on the door of the residence
and identified himself as a police officer, he heard an adult male
voice from within the apartment, followed by movement and silence.
Id. at 147. When the officer knocked a second time, a young child
answered the door and stated that he was home alone, suggesting
that an adult was concealing himself. Id.
We stated that one of these factors on its own was
"insufficient to meet the reasonable suspicion benchmark" required
to justify a protective sweep. Id. at 150. But, we concluded
that "[t]aking these facts in the ensemble -- the high-crime area,
the shootings, their connection with the apartment, the officer's
experience and knowledge anent gang behavior, the evasive action
of the adult known to be present behind the door, and the seeming
attempt to misinform" -- justified the protective sweep. Id. at
151; see also, Solis-Alarcón v. United States, 662 F.3d 577, 581-
82 (1st Cir. 2011) (approving protective sweep of defendant's
residence when officers had evidence suggesting that a drug
trafficker may have also lived in the residence); Crooker v.
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Metallo, 5 F.3d 583, 584 (1st Cir. 1993) (explaining that officers
were justified in conducting a protective sweep where they
possessed specific facts suggesting that a particular dangerous
individual was present in the home); cf. Daoust, 916 F.2d at 759
(upholding protective sweep where the officers "knew that
[defendant] had a prior criminal history of violent behavior, [and]
they knew he owned a handgun, which he kept in a rather unusual
place in the kitchen").
Here, however, while the facts are not as egregious as
they were in United States v. Paradis, 351 F.3d 21 (1st Cir. 2003),
which involved a protective sweep when officers had unusually good
reason to know the area swept was empty, there is no evidence that
could ground the requisite reasonable suspicion comparable to that
found in the cases just described. To the contrary, United States
Postal Inspector Eliezer Julián's testimony indicates that the
officers did "a lot of 'intel' work" before the arrest, which
involved "do[ing] surveillance" and gathering "all the information
available," to "make sure that [law enforcement officers] kn[e]w
exactly where [they were] going" and to ensure that the execution
of the arrest was "as safe as possible." Yet there is no indication
in the testimony that the pre-arrest "intel work" resulted in any
evidence that another person might be present in the home at the
time of the arrest, let alone that another dangerous person would
be.
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And, unlike in Lawlor or Martins, the record contains no
evidence of violence at or near Delgado's apartment. In addition,
unlike in Winston or Daoust, the record contains no evidence that
officers had particularized reason to think that Delgado was armed
and dangerous, beyond the general fact that his alleged offense
involved drug trafficking.5 Similarly unlike in Winston, Lawlor,
or Solis-Alarcón, the record does not contain particularized
evidence that could have led the officers to believe that multiple
persons would have been present in Delgado's residence.
In attempting to explain why the information the
government did have, prior to the sweep, justified the sweep, the
government points to the following facts found in the report and
recommendation: the officers believed there to be a general
relationship between drug trafficking and firearms, and knew that
Delgado was being arrested for a drug trafficking charge; the
officers observed that the building which contained Delgado's
residence included an adjoining apartment; and the officers
observed that Delgado's residence was protected by a rebar fence
5We note that at least one circuit has found that this factor
is not relevant to the protective sweep inquiry. See United States
v. Archibald, 589 F.3d 289, 299 (6th Cir. 2009) ("[A] defendant's
own dangerousness is not relevant in determining whether the
arresting officers reasonably believed that someone else inside
the house might pose a danger to them." (quotation marks and
citation omitted)). Because we find that the record contains no
particularized evidence of Delgado's dangerousness, we need not
reach the question of whether an arrestee's own dangerousness could
be a factor in the protective sweep analysis.
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and gate and had visible security cameras, thus potentially
allowing officers' movements to be tracked by someone inside the
house. The government adds that Delgado's immediate voluntary
surrender outside the residence could have allowed the officers to
infer that "others were hiding [inside the house] waiting to . . .
launch a surprise attack on the agents."
We are not persuaded. We have never held that because
the person arrested is sought for drug trafficking, it is
reasonable to suspect for that reason alone that there may be
another person in the home who poses a danger to officer safety.
And we do not see why such a conclusion is reasonable here, when
Delgado was arrested in Puerto Rico on a New York warrant and the
government points to no evidence of a link between Delgado's
alleged drug dealing and the presence of confederates in Puerto
Rico, let alone a link that would suggest any such local
confederate would have been at Delgado's residence between 4:30
and 5:00 A.M.6 See Archibald, 589 F.3d at 299 (noting that the
particular arrest warrant at issue "did not raise concerns that an
accomplice might be present in [the defendant's] apartment at the
time of his arrest"); see also United States v. Moran Vargas, 376
F.3d 112, 116 (2d Cir. 2004) (rejecting the contention that "agents
6
The lessee of the apartment adjoining Delgado's house
testified that, on February 20, 2014, she was awoken between
4:30 a.m. and 5:00 a.m. by law enforcement's presence at the
residence.
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had a reasonable belief that other people might be in the motel
room due to their suspicion that [the defendant] was a drug
courier, their experience that drug couriers often meet up with
their contacts, and their awareness that drug traffickers are
frequently armed and dangerous" when "[n]o facts specific to this
case support[ed] [such] a finding").
There were, to be sure, nearby residences, including an
adjoining apartment. The government does not explain, however,
why that fact bears on whether anyone besides Delgado who might
pose a danger to officers was present in Delgado's home, even when
considered in connection with the reason for Delgado's arrest.
Nor is there any testimony that the "intel work" that had been
performed prior to the execution of the arrest warrant suggested
a reason to conclude that the adjoining apartment made it likely
for a dangerous confederate of Delagdo's to be present.
As for the gate and rebar fence, neither is a
particularly uncommon residential feature. Nor does the record
suggest otherwise. We thus fail to see how either feature, even
when considered along with the facts already mentioned, provides
a basis for reasonably suspecting that someone besides Delgado was
in the house who could pose a threat to the officers. See
Archibald, 589 F.3d at 299–300 (explaining that the government's
burden "is not reduced because the officers were unable to view
the entire residence or because they felt 'particularly
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vulnerable' based solely on their location," and that "if, as the
officers testified, entry into a 'fatal funnel' poses a greater
risk to law enforcement, the prudent course of action would have
been to back away from the door, not proceed through it").
So too do the government's arguments fail with respect
to the presence of security cameras on the premises. Security
cameras may better allow a person within a residence to track
officers' movements outside. But we fail to see how their presence
provides officers a reason to believe that there is in fact someone
else inside a residence. Nor does anything in the record indicate
that there is any particular reason to believe that the presence
of such cameras does indicate that someone besides the person
arrested was likely to be in the home of the arrestee. Thus, the
security cameras, even if considered in connection with the other
residential features of the home and Delgado's ties to drug
trafficking, fail to shed any light on the question, under Buie,
whether "a reasonably prudent officer" was warranted "in believing
that the area to be swept harbor[ed] an individual posing a danger
to those on the arrest scene." 494 U.S. at 334.
The final point we are asked to consider is the
government's argument that Delgado's immediate voluntary surrender
on the porch allows officers to infer the presence of others lying
in wait from inside the residence. But Buie allows a protective
sweep based on "articulable facts which, taken together with the
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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
334 (emphasis added).
We decline to conclude that, under Buie, it is rational,
on this record, to infer that Delgado's voluntary surrender outside
his home supports a belief that confederates were lying inside in
wait. And that is so even if we take account of the other facts
the government identifies in assessing the significance of the
voluntary surrender. An arrestee may surrender outside for any
number of reasons, including a desire to be cooperative, a fear
that officers will otherwise use physical force against him or his
property, or a desire to prevent the officers from entering a
residence and seeing possible contraband inside.
To be sure, we recognize that the experience of law
enforcement officers is entitled to deference. See Martins, 413
F.3d at 150 n.4. But, nothing in the testimony of the two officers
articulates why it was reasonable, in this case, to infer from
Delgado's surrender on the porch that someone else must have been
lying in wait inside his home. Neither officer indicated in their
testimony that it was either unusual or suspicious that Delgado
came downstairs and met the officer's outside the front of the
house. To the contrary, the testimony reflects that the officers
initially sought to break through the rebar fence but then stopped
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and waited -- albeit while calling for him to hurry up -- once
Delgado opened a window and told the officers that he was on his
way and would open the door.
The government relies on Winston, 444 F.3d 115, to argue
that Delgado's "voluntary surrender outside the home 'could lead
a reasonable agent to believe that it was part of a scheme to lead
the agents away from the [house] because others were hiding there
waiting to escape or launch a surprise attack on the agents.'"
(quoting Winston, 444 F.3d at 119). But the facts of Winston do
not support the assertion.
In that case, federal agents arrived at Winston's home
to arrest him and saw his car in the driveway. Id. at 117. When
the agents knocked on the door, Winston's girlfriend answered and
denied knowing to whom the car belonged. Id. She suggested that
the agents inquire next door. Id. The agents did so, but no one
answered. Approximately five minutes later, the agents knocked
again at Winston's door. Id. This time, they pushed past the
girlfriend into the house. Id. When they shouted Winston's name,
he responded, "Up here." Id. The agents then found and arrested
him at the top of a staircase. Id.
We found that a protective sweep was reasonable. But we
did so because "the deceptive actions of Winston's girlfriend . . .
gave any potential occupants inside the house five minutes to
conceal themselves or prepare an ambush," and because Delgado's
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"casual response inviting [the agents] upstairs was unusual,"
"given that Winston knew that agents had forcibly entered his
house," and thus "could lead a reasonable agent to believe that
[these actions were] part of a scheme to lead the agents away from
the basement because others were hiding there waiting to escape or
launch a surprise attack on the agents." Id.
The facts here are hardly comparable. Nor, as we have
mentioned, does any testimony from officers on the scene support
the government's assertion in its brief that Delgado's voluntary
surrender outside the home was in its nature reasonably viewed as
part of a scheme to lead the agents away from the house because
others were preparing inside to launch a surprise attack on the
agents.
In sum, there were not articulable facts -- even when
considered as a whole -- supporting the presence of another
individual in Delgado's residence.7 To be sure, the government
did not know for certain that no one else would be in Delgado's
residence who might pose a danger. But "[l]ack of information
cannot provide an articulable basis upon which to justify a
protective sweep." United States v. Colbert, 76 F.3d 773, 778
7 We note also that an officer testified that a protective
sweep of a residence is standard practice when making an arrest,
at least, apparently in a case involving narcotics. That testimony
hardly suffices to show that the sweep was based on specific
articulable facts about safety concerns that existed at the time
of the sweep.
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(6th Cir. 1996). For while "there could always be a dangerous
person concealed within a structure[,] . . . that in itself cannot
justify a protective sweep, unless such sweeps are simply to be
permitted as a matter of course, a result hardly indicated by the
Supreme Court in Buie." United States v. Carter, 360 F.3d 1235,
1242–43 (10th Cir. 2004).8
C.
Having found the protective sweep unlawful, we next must
address Delgado's contention, raised only in his pro se
supplemental brief, that all of the evidence that was recovered
during and following the sweep -- and thus both the magazine
recovered during the sweep itself and the loaded firearm that was
recovered in a separate search of the dresser inside his home --
must be excluded as the fruit of the unlawful sweep. We agree
with Delgado on this point, too.
"[T]he indirect fruits of an illegal search or arrest
should be suppressed when they bear a sufficiently close
relationship to the underlying illegality." New York v. Harris,
8 A finding that the protective sweep was unlawful is also
reason to reject the government's argument that the admission of
the firearm was, if erroneous, harmless error. The government
argues harmlessness on the ground that the magazine alone was
sufficient to convict Delgado. But it is undisputed that the
magazine was recovered during the protective sweep, so a finding
that the protective sweep was unlawful forecloses the government's
harmlessness argument, given that the government raised no
argument as to why the magazine would not then be a fruit of the
unlawful protective sweep.
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495 U.S. 14, 19 (1990). Or, put otherwise, "[t]he question whether
evidence obtained after an illegal search should be suppressed"
depends on whether "the evidence to which . . . objection is made
has been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary
taint.'" United States v. Finucan, 708 F.2d 838, 843 (1st Cir.
1983) (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963))
(ellipsis in original).
In considering whether the indirect fruits of an
unlawful action by law enforcement should be suppressed, courts
have considered several factors. The Supreme Court has noted that
"[n]o single fact is dispositive," but that "temporal proximity,"
"the presence of intervening circumstances," and "the purpose and
flagrancy of the official misconduct" are all relevant to the taint
inquiry. See Brown v. Illinois, 422 U.S. 590, 603-04 (1975). And,
where, as here, an earlier unlawful search is alleged to have
tainted consent that is given later, we have "emphasized the
importance of determining whether the prior illegality
'significantly influenced' or 'played a significant role' in the
subsequent consent." United States v. Cordero-Rosario, 786 F.3d
64, 76 (1st Cir. 2015).
Applying these principles, it is clear that our
conclusion that the protective sweep was unlawful requires that
the magazine found during that sweep be excluded from evidence, as
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it is an unlawful fruit of the protective sweep. In fact, the
government does not even make an argument as to how the conclusion
could be otherwise.
We also agree with Delgado that the loaded firearm, which
was found during a search of a dresser in Delgado's home that
followed the protective sweep, must be excluded. Here, too, the
government does not make any separate argument that the search of
the dresser, which revealed the loaded firearm, was not tainted.
Instead, the government merely contends that the search of the
dresser that followed the unlawful sweep was consensual. But that
contention is beside the point. For while it is true that, under
our precedent, Delgado's voluntary response to Díaz-Vargas's
question, in which Delgado said that there was a firearm in the
dresser, would ordinarily suffice to allow officers to search the
dresser, see United States v. Reynolds, 646 F.3d 63, 73 (1st Cir.
2011) ("It was reasonable for the district court to find that [the
defendant's] gesture to the headboard when answering 'yes' to
whether she had weapons demonstrated that [the defendant]
understood the police officer intended not only to learn of the
existence of the weapons, but also to find them."); see also
Winston, 444 F.3d at 121, that voluntary response followed what we
have now determined to be an unlawful protective sweep.
The question, then, is whether that consent was tainted
by the unlawful protective sweep, such that the evidence turned up
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in the search is an illegal fruit. To answer that question, we
must "determine whether the causal link between [the] prior
unlawful search and consent (voluntary though it may have been) to
[the] subsequent search is so tight that the evidence acquired
pursuant to that consent must be suppressed." Cordero-Rosario,
786 F.3d at 76 (citing United States vs. Navedo-Colón, 996 F.2d
1337, 1339 (1st Cir. 1993)).
Based on the record developed at the hearing below at
which the question of the protective sweep's lawfulness was fully
addressed, the causal link between the protective sweep and
Delgado's consent to search the dresser is quite strong. The
record contains no indication that Díaz-Vargas or any other officer
would have asked Delgado whether there were weapons in the
residence -- and no evidence that Delgado would have voluntarily
revealed the firearm's existence and location -- if not for the
protective sweep which occurred mere minutes before Díaz-Vargas
asked Delgado about possible weapons. See Cordero-Rosario, 786
F.3d at 76. And the government makes no argument as to why
Delgado's consent was not the tainted fruit of the unlawful sweep.
The government does make two further arguments -- each,
for the first time on appeal -- as to why the loaded firearm is
admissible even if the protective sweep was unlawful. But, even
if we were to address those contentions despite their not having
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been raised below, see United States v. Elwell, 984 F.2d 1289,
1298 (1st Cir. 1993), neither has merit.
The government first contends that we may affirm the
suppression ruling on the ground that, in light of the Magistrate
Judge's finding that Delgado later freely and voluntarily
consented to a search of the full residence, the loaded firearm
would have been inevitably discovered. The government thus argues
that Delgado's consent to the full-residence search "cured any
possible illegality in the earlier limited search of his dresser
drawer during which officers retrieved the loaded firearm."
Under the inevitable discovery doctrine, however, "[t]he
government bears the burden of showing, by reference to
demonstrated historical facts and by a preponderance of the
evidence, that the information or item would inevitably have been
discovered by lawful means." United States v. Infante-Ruiz, 13
F.3d 498, 503 (1st Cir. 1994) (quotation marks and citation
omitted). And, in evaluating whether the government has met this
burden, we consider whether "the lawful means of [evidence's]
discovery are independent and would necessarily have been
employed" absent the earlier unlawful search, and whether
"discovery by that [lawful] means is in fact inevitable." United
States v. Zapata, 18 F.3d 971, 978 (1st Cir. 1994). We review the
District Court's factual findings as they relate to inevitable
discovery for clear error, and review legal conclusions as to the
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inevitable discovery issue de novo. United States v. Almeida, 434
F.3d 25, 27 (1st Cir. 2006).9
In applying the inevitable discovery doctrine to
Delgado's case, we must consider whether the government has met
its burden of showing that Delgado would inevitably have freely
consented to a search of his home -- thereby resulting in the
discovery of the magazine and the loaded firearm -- even if there
had been no unlawful protective sweep. But this burden is not one
that the government has met.
The Magistrate Judge did find that Delgado cooperated
with law enforcement throughout the encounter, a fact that perhaps
lends some support to the view that Delgado may have consented to
the search of the residence even if the protective sweep had not
occurred. But the Magistrate Judge did not find that Delgado would
have freely consented to a search of his residence even if the
earlier protective sweep had not occurred. Nor did the government
below attempt to make the case that Delgado would have done so.
9 Neither the government nor Delgado discussed inevitable
discovery in their filings below or at the suppression hearing.
While this may suggest that remand would be appropriate with
respect to the inevitable discovery issue, remand is not necessary
here. The government does not ask for a remand in the event that
we reach the inevitable discovery issue, and instead fully briefs
it. As we have already noted, the burden of showing that the
firearm would have inevitably been discovered, even without the
unlawful protective sweep, rests with the government. See Infante-
Ruiz, 13 F.3d at 503.
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We reject the government's contention that the record sufficiently
shows that Delgado's consent to the full-residence search was not
significantly influenced by the fact that officers had already
recovered the magazine. After all, he had already told officers
that a firearm was in a dresser drawer in his residence, and had
done so following a protective sweep during which the magazine was
in plain view. Nothing in the record suggests Delgado was not
aware that the magazine was in plain view during the protective
sweep or that Delgado would have admitted to having a firearm
regardless of that fact. As the search for the firearm in the
dresser was tainted by the protective sweep in light of the
magazine's presence in plain view, we do not see how Delgado's
consent to do the full-residence search was not significantly
influenced by the fact that Delgado knew the protective sweep had
occurred.
In other words, the government's inevitable discovery
argument rests on speculation about what Delgado would have done
had the events of that day proceeded differently. But, the
government cites no authority to support its view that we must
credit such speculation, which we consider here even without a
finding below accepting the government's view. Instead, the
government cites only one case in its discussion of inevitable
discovery for the proposition that the government can meet its
burden based on speculation about how a suspect or defendant would
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have acted had an earlier unlawful search not taken place. And
that case is an out-of-circuit district court case with facts very
different from this one. See United States v. Wai-Keung, 845 F.
Supp. 1548, 1560-61 (S.D. Fla. 1994) (concluding that an individual
would have consented to a search of his car even absent an
allegedly unlawful search the previous day, given that the
individual in fact consented while having no knowledge of the
previous day's allegedly unlawful search). As a result, we find
that the government has failed to carry its burden of showing that
the discovery of the loaded firearm would have been inevitable,
even absent the unlawful protective sweep. See Infante-Ruiz, 13
F.3d at 503.
The government's other never-before-raised argument as
to why we must affirm the suppression ruling is that exigent
circumstances justify the retrieval of the loaded firearm from the
dresser. In so arguing, however, the government does not
acknowledge that the officers' only source of knowledge about the
firearm -- Delgado's statement of its existence and
location -- was tainted by the unlawful protective sweep. And, in
the only case that the government cites in support of its exigent
circumstances argument, which featured the threat of a suspect
detonating bombs located within a residence rather than a firearm
in a dresser drawer in an apparently empty home, United States v.
Lindsey, 877 F.2d 777 (9th Cir. 1989), the officers' knowledge of
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the potentially exigent circumstance was not challenged as
potentially tainted. As a result, we decline to adopt the
government's exigent circumstances argument.
III.
For these reasons, the District Court's denial of
Delgado's motion to suppress is reversed, and the case is remanded
to the District Court.
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