United States v. Kelly Donald Gould , 364 F.3d 578 ( 2004 )

GARWOOD, Circuit Judge:

In this felon-in-possession prosecution (18 U.S.C. § 922(g)(1)), the Government appeals the district court’s granting of the motion to suppress filed by defendant-ap-pellee Kelly Donald Gould (Gould).

Louisiana deputy sheriffs, having received on October 17, 2000, a telephone warning that Gould, known to be a convicted felon with a reputation for violence, was planning to kill two local judges, went that same evening to the approximately 14 x 60 foot trailer where Gould lived to talk to him, not then intending to arrest him. The officers, who had neither a search nor an arrest warrant, were admitted by another resident of the trailer, Dennis Cabral, who said Gould was asleep in his bedroom. The officers entered and proceeded down the hall towards the bedroom Cabral had indicated. The bedroom door was open, but the officers did not see Gould, and they then conducted a brief protective sweep for him, looking under the bed and opening the door to each of the two bedroom closets, in one of which they saw in plain view, but did not then seize, three rifles. They promptly then ran outside and later found Gould hiding in the woods. In subsequent questioning Gould stated he was keeping the rifles for their owner, a female acquaintance. Gould was then arrested, executed a consent to search, and the rifles were then seized.

The district court, granting the motion to suppress the weapons, held that although “Cabral had apparent authority to consent to the search of the mobile home ... he had no apparent authority to consent to a search of the master bedroom.” The Government sought to invoke the “protective sweep” doctrine of Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). However, the district court, though recognizing that the officers “needed to locate the defendant for their own safety, so they could make sure he did not launch a surprise attack from a hidden location,” construed our opinion in United States v. Wilson, 36 F.3d 1298, 1306 (5th Cir.1994), as having “explicitly restricted the use of the ‘protective sweep’ exception to the warrant requirement to searches incident to arrest,” and thus held that “[bjecause the ‘protective sweep’ was not conducted as an incident to arrest, however, the search of the closet in the master bedroom was illegal.” In denying the government’s motion for reconsideration, the district court summarized and confirmed its prior ruling:

“[T]his court noted the defendant’s violent past, and did not dispute that the officers were justified in viewing the defendant as a violent and potentially dangerous individual. Furthermore, the officers’ search of the master bedroom did not exceed the acceptable scope of a protective sweep, which extends only to a cursory inspection of those spaces where a person may be found, and lasts no longer than is necessary to dispel the reasonable suspicion of danger. However, this court found that the initial search was illegal, because it did not meet the requirement that a protective sweep must be incident to an arrest.”

A panel of this court affirmed. United States v. Gould, 326 F.3d 651 (5th Cir.2003). The panel concluded that it was bound by Wilson, the most reasonable reading of which was that it laid down an across-the-board, bright-line rule that, whatever the other circumstances of a particular case might be, the “protective sweep” doctrine was always inapplicable if the sweep was not incident to an arrest. Gould at 654-55. The panel, however, suggested the appropriateness of considering en banc “whether this Circuit should adhere to Wilson’s ipso facto disallowance of all protective sweeps not incident to an arrest.” Id. at 655, et seq. We then voted the case en banc. United States v. Gould, 335 F.3d 376 (5th Cir.2003).

I.

WHETHER A PROTECTIVE SWEEP MUST ALWAYS BE INCIDENT TO AN ARREST

We turn initially to the primary issue now before us, namely whether there is an across-the-board, hard and fast per se rule that a protective sweep can be valid only if conducted incident to an arrest. We hold there is not.

We begin, of course, with the Supreme Court’s opinion in Buie. And that opinion does, indeed, begin with the statement that “[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.” Id. at 1094. But there was no dispute in Buie that the sweep was incidental to arrest, and nothing in Buie states that if the officers were otherwise lawfully in the defendant’s home and faced with a similar danger such a sweep would have been illegal. The Buie Court had no occasion to so state as the sweep there was indisputably incident to the arrest. We note that in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), likewise a home search case, the Court describes as “dubious logic” the argument “that an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it.” Id. at 590.

We do not suggest that Buie did not emphasize the fact of arrest. It indeed did. But it did so because the arrest exposed the officers to danger. Buie at 1098. However, Buie gives no indication that circumstances other than arrest which expose police officers to a comparable degree of danger could not also justify a similar protective response (at least where those circumstances are not the product of police illegality or misconduct). Similarly, Buie notes that the arrest there was pursuant to a warrant, so the officers were lawfully on the premises for a proper purpose. Id. at 1096 (citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)) and 1097. But nothing in Buie suggests that the result would have been different had the police otherwise properly entered the house as, for example, pursuant to a proper consent rather than a warrant. Cf. Payton at 1374-75 (‘We now ... hold that the Fourth Amendment ... prohibits the police from making a warrantless and non-consensual entry into a suspect’s home in order to make a routine felony arrest”) and 1378 (“we are dealing with entries into homes made without the consent of any occupant”). Moreover, Buie makes clear that neither the arrest nor the warrant sufficed to justify the sweep there, which occurred after the arrest and was of an area of the home well removed from the place of arrest, an area in which the defendant retained a Fourth Amendment protected privacy interest. Id. at 1097, 1099 (citing the holding in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), that a search incident to an in-home arrest may not extend beyond the area from within which the arrestee might then obtain a weapon). Rather, the sweep in Buie was evaluated on a general Fourth Amendment reasonableness standard, and was justified, in reliance on the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), where there was reasonable suspicion that the area swept harbored a person posing a danger to the officers present and the sweep was limited to a cursory inspection of places where a person may be found and lasted no longer than necessary to dispel the reasonable suspicion of danger nor longer than what it takes to complete the arrest and leave the house. Buie at 1096-99.

In Buie, two men, one wearing a red running suit, committed an armed robbery and later that day an arrest warrant respecting that offense was issued for Buie and another man (no search warrant was ever issued). Two days thereafter the police, by having a telephone call made to Buie’s house which was answered first by a female and then by Buie, ascertained that Buie was at home, and then proceeded to his house, entered it and looked for Buie on the first and second floors. Then Officer Rozar went to the top of the basement stairs and shouted into the basement stating “ ‘this is the police’ ” and “ordering anyone down there to come out.” Id. at 1095. Then,

“Buie emerged from the basement. He was arrested, searched and handcuffed by Rozar. Thereafter, Detective Joseph Frolich entered the basement ‘in case there was someone else’ down there. He noticed a red running suit lying in plain view on a stack of clothing and seized it.” Id. (emphasis added).

The Maryland Court of Appeals reversed Buie’s robbery conviction holding that the trial court erred by denying his motion to suppress the running suit because Frolich’s sweep of the basement was supported neither by a search warrant nor by probable cause to believe that a serious and demonstrable potentiality for danger existed there; reasonable suspicion did not suffice. Buie v. State, 314 Md. 151, 550 A.2d 79 (1988). The Supreme Court vacated and remanded, holding that reasonable suspicion sufficed, and that probable cause was not required, for such a protective sweep. Buie, 110 S.Ct. at 1094-95.

The Supreme Court, though acknowledging that the arrest warrant authorized the police to search for Buie anywhere in the house, including the basement, “until the point of Buie’s arrest,” id. at 1096 (emphasis added), nevertheless expressly recognized that “[o]nce he [Buie] was found, however, the search for him was over, and there was no longer that particular justification for entering any rooms [i.e., the basement] that had not yet been searched” and that “Buie had” a Fourth Amendment protected “expectation of privacy in those remaining areas of his house.” Id. at 1097. This conclusion likewise plainly followed from Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which, as Buie noted, “held that in the absence of a search warrant, the justifiable search incident to an in-home arrest could not extend beyond the arrestee’s person and the area from within which the arrestee might have obtained a weapon.” Buie at 1099. See also id. at 1098 (rejecting argument “that entering rooms not examined prior to the arrest is a de minimis intrusion that may be disregarded”).

The Buie Court thus noted that at “[tissue in this case is what level of justification the Fourth Amendment required before Detective Frolich could legally enter the basement to see if someone else was there.” Id. at 1096. To resolve that issue the Court invoked the general reasonableness standard of the Fourth Amendment, balancing the intrusion on the protected interests against the promotion of legitimate governmental interests, particularly as guided by Terry and Michigan v. Long. Buie thus states:

“It goes without saying that the Fourth Amendment bars only unreasonable searches and seizures [citation omitted]. Our cases show that in determining reasonableness, we have balanced the intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests, [citations omitted]. Under this test, a search of the house or office is generally not reasonable without a warrant issued on probable cause. There are other contexts, however, where the public interest is such that neither a warrant nor probable cause is required, [citations omitted].

The Terry case is most instructive for present purposes.... Applying that balancing test, it was held that although a frisk for weapons ‘constitutes a severe, though brief, intrusion upon cherished personal security,’ [citation omitted] such a frisk is reasonable when weighed against the ‘need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.’

The [Michigan u] Long Court expressly rejected the contention that Terry restricted preventative searches to the person of a detained suspect, [citation omitted]. In a sense, Long authorized a ‘frisk’ of an automobile for weapons.

The ingredients to apply the balance struck in Terry and Long are present in this case. ... In Terry and Long we were concerned with the immediate interest of the police officers in taking steps to assure themselves that the persons with whom they were dealing were not armed with, or able to gain immediate control of, a weapon that could unexpectedly and fatally be used against them. In the instant case, there is an analogous interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.... ... we hold that there must be articula-ble facts which, 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. This is no more and no less than was required in Terry and Long, and as in those cases, we think this balance is the proper one.” Buie at 1096-98 (emphases added; footnote omitted).¹

We recognize that, as stated in United States v. United States District Court for E.D.Mich, 407 U.S. 297, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972), and reiterated in Payton at 1379-80, 82, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” and “the Fourth Amendment has drawn a firm line at the entrance to the house.”² However, Buie makes clear that that worthy principle does not preclude application in the in-home sweep context of the general reasonableness standard calculated by balancing the intrusion on Fourth Amendment interests against the promotion of legitimate governmental interests, including those of officer safety. . Indeed, Buie expressly noted and rejected the Maryland Court of Appeals’ refusal to apply the reasonable suspicion standard of Terry and Long on the ground that “the sanctity of the home” required a more demanding standard. Id. at 1096. We also note that recently the Supreme Court in Knights applied the same general reasonableness, balancing test in upholding a home search, stating “[t]he touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” Knights at 591 (quoting Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 1300, 143 L.Ed.2d 408 (1999)).³

Applying this balancing principle, and mindful of Buie’s heavy reliance on Terry and Long, neither of which involved an arrest, we hold that arrest is not always, or per se, an indispensable element of an in-home protective sweep, and that although arrest may be highly relevant, particularly as tending to show the requisite potential of danger to the officers, that danger may also be established by other circumstances. We note in this connection the statements in Long that “if a suspect is ‘dangerous,’ he is no less dangerous simply because he is not arrested”, id. at 3481, and “the officer remains particularly vulnerable in part because a full custodial arrest has not been effected.” Id. at 3482 (emphasis added). Buie does state that “the risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory context” such as in Terry or Long. Buie at 1098. Bide gives two reasons for that conclusion: first, in the Terry and Long frisk context the confrontation has “not escalated to the point of arrest” which involves “taking a person into custody for the purpose of prosecuting him,” and, second:

“unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” Id.

While the first reason focuses on arrest, the second does not and seems equally applicable to a police investigatory confrontation in the home as to an in-home arrest. Accordingly, in the in-home context it appears clear that even without an arrest other circumstances can give rise to equally reasonable suspicion of equally serious risk of danger of officers being ambushed by a hidden person as would be the case were there an arrest.⁴

Several decisions of other circuits have upheld an in-home Buie protective sweep even though not incident to an arrest. In United States v. Patrick, 959 F.2d 991 (D.C.Cir.1992), the D.C. Circuit dealt, as we do here, with a consent entry case and upheld the protective sweep of a bedroom in the apartment which the party authorizing entry (the court assumed arguendo) had no right to authorize search of, even though the sweep was not incident to an arrest. The court stated:

“We first note that, even if Smith could not have consented to the search of Patrick’s bedroom, he could, as lessee of the apartment, unquestionably give the police authority to search the rest of it. Once the police were lawfully on the premises, they were authorized to conduct a protective sweep based on their reasonable belief that one of its inhabitants was trafficking in narcotics.... We think the holding in Buie, notwithstanding the search there was conducted pursuant to a warrant and not consent, supports the police search here. Accordingly, the police validly entered the bedroom when they looked through the open door and saw Patrick inside.” Id. at 996-97 (emphasis added).

Similarly, in United States v. Taylor, 248 F.3d 506 (6th Cir.2001), another consent entry case, the court likewise upheld a protective sweep not incident to an arrest, stating:

“Taylor argues that a protective sweep is authorized only when it is made incident to a lawful arrest. Therefore, he contends, because Hill had not been arrested when the officers made their cursory search of Taylor’s apartment, the sweep was per se invalid. In contrast, the government argues that while Buie and Biggs [United States v. Biggs, 70 F.Sd 913 (6th Cir.1995) ]were each decided in the factual context of officers making an arrest, nothing in those opinions indicates that an arrest is a mandatory prerequisite for conducting a protective sweep of the area. The government further points out that the Buie decision was based upon the reasoning set forth in the Supreme Court’s earlier decisions in Terry and Long, both of which were investigative stop cases.

We believe the government presents the more compelling argument.” Id. at 513.

In United States v. Garcia, 997 F.2d 1273 (9th Cir.1993), the court similarly upheld a protective sweep in a consent entry case where no arrest was made until after the sweep discovered guns in plain view.⁵

Also noteworthy is United States v. Daoust, 916 F.2d 757 (1st Cir.1990), an opinion by then Judge (now Justice) Breyer. There the officers, looking through a window into the kitchen of a home, observed a particularly described pistol hanging over the kitchen sink. They then procured a search warrant to search for that particular pistol. Armed with that warrant, they went into the house, but did not confine themselves to going to the kitchen where they knew the gun described in the warrant was, but rather conducted a protective sweep of all the rooms in the house, discovering in those other rooms other weapons (not covered by the warrant) in plain view. There was no arrest or attempted arrest. The First Circuit held that nevertheless the protective sweep was justified under Buie.

The cases in which the courts have indicated that protective sweeps must always be incident to arrest, are mostly ones involving situations where the entry into the house was itself illegal.⁶

Having held that an in-home protective sweep is not necessarily or per se invalid, regai’dless of other circumstances, merely because it is not incident to an arrest, we accordingly disapprove of the language to the contrary in Wilson.'⁷ We note, however, our agreement with Wilson’s ultimate determination that the challenged search of the wastebasket and seizure of the checkbook in it could not be justified as a protective sweep. In the first place, there was no evidence in Wilson indicating any danger was posed; Wilson was suspected only of stealing from the mail and nothing suggested he (or anyone else present) was dangerous or violent or anything of the kind. In the second place, as Wilson itself properly observes, “the seizure of the checkbook from the wastebasket was not within the narrow ambit of a ‘cursory visual inspection’ of a place where a person could be hiding.” Wilson at 1035-36 (citing Buie, 110 S.Ct. at 1099).⁸

Thus, in the present case' the district court erred as a matter of law in holding, in its understandable reliance on the language in Wilson, that a protective sweep could never be valid, regardless of other circumstances, unless incident to an arrest, and on that sole basis granting the motion to suppress.

II. OTHER PROTECTIVE SWEEP REQUIREMENTS

We now turn to the other requirements for a valid in-home protective sweep and their applicability here.

A. Other requirements generally

First, it is at least implicit in Buie that although the protective sweep may extend to areas of the home where the police otherwise (i.e., apart from the protective sweep doctrine) then have no right to go, nevertheless when undertaken from within the home, the police must not have entered (or remained in) the home illegally and their presence within it must be for a legitimate law enforcement purpose.⁹

Further, the protective sweep must be supported “by a reasonable, articulable suspicion”, Buie at 1099, “that the area to be swept harbors an individual posing a danger to” those on the scene. Id. at 1100.

Next, the legitimate protective sweep may not be “a full search” but may be no more than “a cursory inspection of those spaces where a person may be found.” Id. at 1099.

Finally, the sweep is subject to two time limitations. First, it may “last[ ] no longer than is necessary to dispel the reasonable suspicion of danger,” id.; and, second, it may last no longer than the police are justified in remaining on the premises. See id. (“and in any event no longer than it takes to complete the arrest and depart the premises”); see also id. at 1098 (police permitted “to take reasonable steps to ensure their safety after, and while making, the arrest”).

B. Relevant facts and findings here

1. Introduction

In our review of the district court’s suppression order, we observe that the only witnesses at the suppression hearing were three of the deputy sheriffs who were present on the scene, who were called by the Government, and Cabral, the sole defense witness. The district court explicitly credited the testimony of the deputies and refused to credit Cabral’s.¹⁰

2. Officers were legally within the mobile home

The testimony of the officers was to the effect that Cabral met them at the entrance to the mobile home, that they told him they were looking for Gould and wanted to speak to him. Cabral said that Gould was in Ms bedroom, indicating where it was, was probably asleep, and that they were welcome to come in and check it out. The officers entered, walked toward Gould’s bedroom, noticed the door was open but did not see Gould, so conducted a brief protective sweep of the bedroom and its two closets, in one of which the guns were observed in plain view.¹¹ The district court found that “Cabral consented to the entry of the detectives into the trailer to search for the defendant” and that “the detectives were reasonable in believing that Mr. Cabral was authorized to consent to the search.” However, the court found that “[b]ecause there was no indication that Mr. Cabral lived in the master bedroom, he had no apparent authority to consent to a search of the master bedroom.” We conclude that the only reasonable construction of the credited testimony is not only that Cabral consented to the officers’ entry into the mobile home to look for Gould but also that this consent, at least by the clearest implication, extended to the master bedroom. This is so because, although the officers did not specifically and separately mention the bedroom in asking to come in, they did state they wanted to talk to Gould and asked if they could come in to see if he was there, and Cabral responded that Gould was likely asleep in his bedroom, pointing to it, and stating “you are more than welcome to come in and check it out.” Cabral, however, lacked any authority, actual or apparent, to consent to a search of the master bedroom (although he had at least apparent authority to otherwise consent to a search of the mobile home), and for that reason the search of the master bedroom had to be justified as a protective sweep, just as did the search of the basement in Buie. The district court declined to justify the search of the bedroom on that basis solely because the sweep was not incident to an arrest.

We recognize that protective sweeps following a consent entry may in certain circumstances pose Fourth Amendment concerns not present in cases where the initial entry is pursuant to a warrant. For example, concerns might arise respecting a consent to entry requested for a stated common purpose but actually intended not for that purpose but rather for the purpose of gaining access in order to then make a protective sweep of the entire home for unrelated reasons and thus circumvent the warrant requirement. Concerns of a similar character might also arguably arise where the consent to entry is given expressly or implicitly only as to a limited area but the protective sweep extends clearly beyond that area without anything having developed since entry suggestive of greater or more imminent danger than that initially apparent just prior to entry. We do not purport to now ultimately resolve hypothetical cases of those varieties, for the mentioned kinds of concerns are not meaningfully implicated here. The credited evidence does not show and the district court did not find that the officers sought entry for any purpose other than what they stated to Cabral, namely to see if Gould was there and to talk to him, and Cabral, knowing that purpose, consented to the entry. Moreover, the consent which he purported to give was not either expressly or implicitly limited, but rather, by the clearest implication, extended to the master bedroom. Finally, after the officers entered the mobile home and proceeded down the hall towards the master bedroom and approached, but before they arrived at, its entrance, they observed that the bedroom’s door was open; Gould was not in his bed asleep, as Cabral had just represented, nor was Gould otherwise visible, so the danger and imminence of ambush then dramatically increased, justifying the few seconds’ “sweep” looking under the bed and opening the two bedroom closet doors.

We decline to adopt any across-the-board rule that a protective sweep can never be valid where the initial entry to the home is pursuant to consent, even where the consent does not of itself legally authorize the entry into the area swept. Any such rule either would require officers to forego any and all consent entries or would prevent them, once having so entered, from taking reasonable, minimally intrusive, means for self-protection when reasonable suspicion of the danger of ambush arises. Applying the general reasonableness standard of Buie and Knights we hold that the Fourth Amendment imposes no such Hobson’s choice. We note that a “knock and talk” police investigatory practice has clearly been recognized as legitimate. See, e.g., United States v. Jones, 239 F.3d 716, 720 (5th Cir.2001). Certainly, the officers were in the mobile home for a legitimate governmental purpose, namely questioning Gould about the information they had received earlier that day, in two telephone calls from Gould’s employee (or co-worker) Forehand, an individual otherwise unknown to them, that Gould, known to be a person prone to violence, was planning to kill two local judges. As the district court recognized, “the officers had a legitimate governmental interest in questioning the defendant about the information they had received.”

In its opinion denying the Government’s motion for reconsideration, the district court faulted the officers on the basis that “[t]he officers could have approached the defendant as he left his mobile home one day, or they could have followed him in any other public place, without necessitating the entry into his residence,” and that accordingly the officers “created the dangerous situation by approaching and entering the mobile home.” Although not explicitly addressed by the district court this raises the question of the potential applicability of our cases holding that although exigent circumstances may justify a warrantless probable cause entry into the home, they will not do so if “the exigent circumstances were manufactured by the agents.” See, e.g., United States v. Rico, 51 F.3d 495, 502 (5th Cir.1995). We have indicated that this involves two levels of inquiry, first whether the officers deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement, and second, even if they did not do so in bad faith, whether their actions creating the exigency were sufficiently unreasonable or improper as to preclude dispensation with the warrant requirement. Id. (recognizing that in United States v. Socey, 846 F.2d 1439, 1449 (D.C.Cir.), cert. denied, 488 U.S. 858, 109 S.Ct. 152, 102 L.Ed.2d 123 (1988), the D.C. Circuit rejected going beyond the first level of inquiry). Here, there is no finding and no evidence to suggest that the officers acted with the intent to create an emergency to circumvent the warrant requirement.¹² We need not and do not here determine whether or to what extent the second (or “reasonableness”) level of inquiry in our manufactured exigent circumstances cases, which involve situations where the entry into the home otherwise contravenes the Fourth Amendment, should be applicable to situations such as the present one where the entry is pursuant to a valid, non-pretextual consent as above described. This is because even under that second level of inquiry the officers’ actions here may not be deemed to have been improper. Our exigent circumstances cases have consistently held in this regard that “we will not second-guess the judgment of law enforcement officers where reasonable minds may differ.” United States v. Howard, 106 F.3d 70, 76 (5th Cir.1997); United States v. Rodea, 102 F.3d 1401, 1410 (5th Cir.1996); Rico at 505. Here there is absolutely no testimony that the tactics or procedures followed by the officers were unreasonable or contrary to standard or good law enforcement practices (or to the policies or practices of their jurisdictions). There is no evidence that the officers ever observed Gould away from his home so that they could have followed him and approached him in a public place, or that they had any idea of where he might be other than the mobile home. The information that the officers received on the evening of October 17 was that Gould, known as a dangerous and violent person, was planning to kill two particular local judges. Clearly, reasonable officers could conclude that the appropriate course of conduct was to go directly to the mobile home, which is where Forehand told them Gould was, rather than wait until “one day”, which might well be a day after someone was killed.¹³

We conclude that the officers were legally within the mobile home for a legitimate governmental purpose when the protective sweep was undertaken.

3. The officers had reasonable suspicion of danger

When the open bedroom door revealed that Gould was not in bed, as had just previously been represented to the officers, or otherwise visible to them, a reasonable basis for suspicion arose that Gould, whom they had been informed was prone to violence and was plotting to kill two judges, might be hiding in the room and posing an imminent danger to the officers. Gould has not challenged this, and the district court found that the officers “needed to locate the defendant for their own safety, so they could make sure he did not launch a surprise attack from a hidden location” and that the bedroom sweep lasted “no longer than ... necessary to dispel the reasonable suspicion of danger.” This element of a legitimate protective sweep is clearly satisfied.

Judge Smith’s dissent asserts that the district court’s conclusion that the officers were justified in viewing Gould as a threat to their safety is based on the court’s concededly erroneous statement in its opinion on reconsideration that Forehand had told the officers in his call earlier that day that Gould had firearms at the trailer, so the officers, knowing Gould was a convicted felon, could, and hence should, have first procured an arrest warrant. Judge Smith then asserts that because the officers lacked such knowledge (in its initial opinion, the district court found that the officers lacked probable cause to arrest Gould until they saw the firearms in the bedroom closet, see note 13, supra) they had no legitimate safety concern justifying the protective sweep when they saw Gould was not in his bed. Judge Smith’s reasoning in this respect basically confuses probable cause with reasonable suspicion. In Buie the Supreme Court expressly rejected the Maryland Court of Appeals’ holding that a protective sweep required “probable cause to believe” there was “ ‘a serious and demonstrable potentiality for danger,’ ” id. at 1096, and went on to hold that the reasonable suspicion standard of Terry and Long governed. Here there is no evidence that the officers had been specifically told that Gould had weapons at the trailer. On the other hand, the credited— indeed the undisputed — testimony is that the officers had been told by Forehand that Gould “had planned to go on a killing spree killing judges, police officers, and minority groups ... and that he was going to go to some type of place after he did these incidents and hide from the police, and those kinds of things, and snipe anybody out that tried to come in and take him into custody.”¹⁴ That a person is planning to go on such a wide killing spree— and thereafter “snipe” at those who might try to take him into custody — certainly suggests that that person has, at the least, ready access to lethal weapons.¹⁵ As a matter of law, the credited testimony establishes that the officers had the requisite reasonable suspicion of enhanced danger when they, at night on Gould’s turf, saw that Gould was not in his bed asleep, as Cabral had just told them he was.¹⁶

4. The siveep was properly limited, in scope and duration

The district court found that “the officers’ search of the master bedroom did not exceed the acceptable scope of a protective sweep, which extends only to a cursory inspection of those spaces where a person may be found, and lasts no longer than is necessary to dispel the reasonable suspicion of danger.” The credited evidence clearly supports these findings and satisfies those elements of a legitimate protective sweep.

If the fact that Gould was not in his bed or otherwise visible in the bedroom can be taken as signifying a refusal on his part to talk to the officers and in that sense a termination of their consent to be in the mobile home for that purpose,¹⁷ nevertheless that does not mean that the officers could not conduct the sweep. They did not have to go back out of the mobile home without taking some brief, minimally intrusive steps to protect themselves against ambush as they were on the way out. In Buie effectuating arrest was the only justification for being in the home, but the sweep of the basement was not commenced until Buie was already arrested, searched and handcuffed on the first floor. Buie at 1095. The court made clear that the sweep authority extended until the officers not only complete the arrest but also “depart the premises,” id. at 1099, and that the officers were permitted “to take reasonable steps to ensure their safety after, and while making, the arrest.” Id. at 1098 (emphasis added). Indeed, here, just as the brief sweep of the bedroom was completed the officers heard someone yell that Gould had departed the mobile home through a back door, and they “immediately” likewise departed the bedroom and went outside looking for Gould.¹⁸

The challenged protective sweep was properly limited in scope and duration.

Conclusion

We hold that a protective sweep as authorized by Buie need not always be incident to an arrest. The district court erred in holding otherwise. Applying the standards and limitations articulated in Buie and the general reasonableness criteria of the Fourth Amendment, we conclude that the protective sweep here was valid. The district court’s suppression order is accordingly

REVERSED.

1 . Buie also recognizes as a special category of permissible sweep, one without even reasonable suspicion, of "closets and other spaces immediately adjoining the place of arrest from within which an attack could be immediately launched.” Id. at 1098 (emphasis added). The Buie opinion language concerning the requirement for reasonable suspicion appearing in the penultimate sentence of the quotation set out in the text above applies to sweeps of areas "[bjeyond” those "immediately adjoining the place of arrest.” Id. at 1098 (emphasis added). No one has ever contended that the sweep in the present case is within that special category as to which not even reasonable suspicion is required (and which may or may not depend on the fact of arrest). We accordingly do not further address this special category and this opinion’s subsequent discussion of protective sweeps generally should be understood as not referring to it.

2 . The Fourth Amendment provides:

“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.”

3 . Knights upheld a reasonable suspicion based law-enforcement (nonprobation related) investigative search without a warrant of a probationer’s home where a condition of probation was a blanket agreement to consent to searches.

We also observe that in Terry, the Court stated that the "inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs,” Terry at 1873, and (as Buie noted, 110 S.Ct. at 1098), it rejected the notion that the weapons pat-down there was merely a "petty indignity,” stating that, to the contrary, it was "a serious intrusion upon the sanctity of the person.” Id. at 1877.

4 . Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), relied on by Gould, does not point in a contrary direction. There the Court held that a routine traffic stop of an automobile for speeding, for which no arrest was made and only a citation was issued-where there was no reasonable suspicion of danger-"does not by itself justify ... a full field-type search” of the car, even though "a full search of the passenger compartment” would be authorized "pursuant to a custodial arrest.” Id. at 488 (emphasis added). There the Court expressly recognized that with reasonable suspicion of danger the officer could conduct a "patdown” both of any occupant of the vehicle and "of the [vehicle's] passenger compart” under Terry and Long. Id. All Knowles says is that while arrest alone may often be enough to give rise to meaningful concern for officer safety (or destruction of evidence), in the absence of arrest there must be some other circumstances giving rise to reasonable suspicion of danger.

5 . Another consent entry case with a similar result is U.S. v. Koubriti, 199 F.Supp.2d 656 (E.D.Mich.2002).

6 .In U.S. v. Davis, 290 F.3d 1239 (10th Cir.2002), there was an illegal, warrantless entry into the house, which the court held was not justified by exigent circumstances. The constitutionality of the protective sweep is addressed only in a brief footnote, n.4 at 1242-43, where it is rejected because there was no arrest, quoting the first sentence of Buie, and also apparently because it was not narrowly confined to a cursory visual inspection of places where a person might be hiding, as required by Buie.

U.S. v. Reid, 226 F.3d 1020, 1022 (9th Cir.2000), was likewise an illegal entry case, the court holding that the consent to entry had been coerced and that there were no exigent circumstances. The court went on to observe that protective sweep did not apply because there was no arrest and no facts demonstrated that a reasonably prudent officer would have believed that the apartment harbored an individual posing a danger to the officers. Id. at 1027. This was a split decision, and does not cite the Garcia case in which the Ninth Circuit had held that a protective sweep need not be incident to an arrest.

Gould also cites U.S. v. Johnson, 170 F.3d 708 (7th Cir.1999). That case involved a pat-down search and detention of a person after he had stepped out of the apartment, there was no entry into the apartment, and “no one had consented to a police entry.” Id. at 719. The police did not have a warrant and there was "no reason to believe that Johnson [who was patted down] was carrying a weapon or any kind of illegal substances at the moment he emerged from the apartment, and Johnson himself took no action himself to make them fearful for anyone's safety.” Id. at 714. Because the detention and pat-down of Johnson was without reasonable suspicion, it was held invalid. Id. at 720. There were three opinions, including a dissent by Judge Easter-brook and a special concurrence by Judge Evans. While the opinion of Judge Wood does contain some references to Buie, and the fact that the pat-down of Johnson was neither incident to an arrest nor a cursory visual inspection of those places in which a person might be hiding, id. at 716, the issues and factual context of Johnson make it completely inapposite here.

7 . We observe that in Wilson the panel either did not cite or did not have available to it the opinions in Patrick, Taylor, Garcia and Daoust. Essentially, Wilson simply assumed that Buie always requires that the sweep be incident to arrest.

8 . Wilson also correctly states that the plain view doctrine did not apply, because the checkbook was not in plain view in the bathroom and because the only thing incriminating about the checkbook was the names on the checks, and they were not visible because of the checkbook cover; the incriminating character of the evidence was not immediately apparent. Id. at 1036.

9 . Normally, absent a warrant the police may not enter a home except with consent or in "exigent circumstances.” See, e.g., Payton, at 1378; Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978); U.S. v. Jones, 239 F.3d 716, 719-20 (5th Cir.2001); U.S. v. Howard, 106 F.3d 70, 73-75 (5th Cir.1997); U.S. v. Rodea, 102 F.3d 1401, 1404-05, 1408-09 (5th Cir.1996); U.S. v. Rico, 51 F.3d 495, 500-01 (5th Cir.1995). Whether (or if so to what extent and under what conditions) the doctrine of "protective sweep” authorizes a warrantless, non-consensual entry into a home that would not be authorized under the more general doctrine of "exigent circumstances” is unclear. See, e.g., U.S. v. Wilson, 306 F.3d 231, 238-39 (5th Cir.2001); U.S. v. Watson, 273 F.3d 599, 602-03 (5th Cir.2001); U.S. v. Merritt, 882 F.2d 916, 921 (5th Cir.1989); Kirkpatrick v. Butler, 870 F.2d 276, 281-83 (5th Cir.1989). We do not address that question here since under the district court's adequately supported findings the officers’ entry into the mobile home was legal as pursuant to valid consent.

10 . The district court stated "this court finds that the detectives' version of the events of October 17, 2000 is more credible” and "the consistent testimony of these detectives who were sequestered during the evidentiary hearing is more credible than the testimony of the defendant's friend and partner [Cabral], who was allegedly involved in the murder plot and who has been convicted of several crimes.”

11 . For example, Deputy Ard testified:

"Q. And you spoke to Mr. Cabral and told him why y'all wanted to be there?

A. Yes, sir.

Q. Okay. As I understand it, he said that Gould was in his bedroom?

A. Right.

Q. Did he say it's okay to go search Kelly Gould's bedroom?

A. He said, he’s in his bedroom. You are more than welcome to come in and check it out.

Q. All right. But he specifically talked about being in his bedroom, right? He wasn’t in Dennis Cabral’s bedroom?

A. No. He said, his bedroom — -if you looking at the trailer, he's to the left. He said, his bedroom is in the back. He’s in there, and he's probably asleep.”

Deputy Brown gave similar testimony, viz: "A. ... We asked him [Cabral] if Kelly Gould was home, and he said, yes, he is. I believe he's asleep in his bedroom, and he pointed toward the north end of the trailer where the only bedroom is on that side of the trailer.

We asked him for permission to come inside the residence to see if Kelly Gould was in the trailer. We wanted to speak with him. We did not have any intentions of arresting him at that time. We just simply wanted to talk to him about the incidents that we’ve talked about so far. He said, sure. No problem. Come in.”

"Q. Did you in fact enter the trailer at the invitation of Mr. Cabral?

A. Yes, we did.”

"When we entered, we immediately went to the left to the direction where Dennis Cabral had pointed to the bedroom, went toward the bedroom door, which is the only bedroom on that end of the trailer.

When we got to the bedroom, the door of the bedroom was open; so looking for him strictly for officer safety reasons, due to the allegations of wanting to kill police officers, and judges, and those — also the incident that occurred in the. courtroom or the Judge's office earlier that day, officer safety was, you know, a predominate issue in our mind. So we entered his bedroom, which the door was open. We looked on the floor. We looked in a closet area to the right of the bed, any place that he could physically hide his body. There was a closet to the left. The closet door was partially open, but not good enough for me to see inside for a person. I opened the door up, looked briefly to see if he was there, never entering the closet itself, and standing in the corner was three weapons, three rifles."

“Q. Okay. So, did you ask him [Cabral] if Kelly Gould was there?

A. Yes, I did.

Q. Okay. And he told you, he’s in the back?

A. He told me that he was in his bedroom. He believed him to be asleep. He pointed in the direction to his right, which would have been to my left.”

"Q. Okay. So the only information he gave you was that Kelly Gould was there? He didn’t invite you to come in?

A. That is not correct. He did let us come in when we asked him, do you mind if we come in and see if he’s there.

Q. Uh-huh.

A. He said, sure. Come in. No problem. And we entered.

Q. All right. And he pointed to the back bedroom where Kelly Gould was?

A. He pointed to the back bedroom that he identified as Kelly Gould's bedroom.

Q. Did you ask permission to go in that bedroom?

A. No, sir.

Q. You didn't? All right.

A. But when I approached the bedroom, Kelly Gould's bedroom, the door was open.

Q. The door of the bedroom was open?

A. That is correct.

Q. You were able to look into the bedroom and look around?

A. Yes.

Q. You went into the bedroom?

A. Yes, I did.

Q. Okay. Did you look under the bed?

A. I looked for any place that I thought a human person could be hiding possibly.”

12 . Had the officers acted with such improper motive or intent, we assume such would have invalidated the sweep.

13 . In its original opinion the district court found that "[tjhe detectives would not have arrested the defendant if they had not found the firearms in the closet, because they would have had no probable cause that he had committed a crime" (emphasis added). This was doubtless based on, among other things, the testimony of Officer Brown who stated that prior to seeing the guns in the closet "I had no knowledge there was weapons in the house.” However, in its opinion denying the Government's motion for reconsideration, the court states, without referring to its initial opinion, that

"... the officers could have obtained a valid search warrant based on the information provided to them by Mr. Forehand. Mr. Forehand informed the officers that, while at the mobile home one day, the defendant had retrieved a twenty-two caliber riñe, equipped with a scope, from his bedroom and showed it to him. Mr. Forehand also reported that Gould described additional weapons that he owned. (See Affidavit of Officer Leonardo Moore, East Baton Rouge Sheriff's Office, p. 3). With this information and the officers’ knowledge that the defendant was a convicted felon, the officers should have obtained a search warrant for the mobile home

The only cited support is the referenced affidavit of Moore, which is dated July 25, 2001, and is attached to the original criminal complaint in this case. As the Government has consistently pointed out, while the Moore affidavit does state that Forehand so advised the officers, it is clear from the affidavit itself, as well as from the record as a whole, that he did so only on being questioned by the officers at the trailer after Gould's arrest. On this appeal, Gould has consistently recognized that that is the case, and has indeed emphasized that the officers did not have probable cause to arrest Gould until they saw the guns in the closet. Thus, in oral argument to the panel Gould's counsel asserted that before looking into the closet "they [the officers] had no information as the Government pointed out that he had a gun” and "[t]hey [the officers] didn't know about the guns.” Similarly, at oral argument to the en banc court Gould's counsel stated "keep in mind, these folks [the officers] had no probable cause. They didn’t even know there were guns in the house.” Accordingly, we disregard the district court’s search warrant finding as it is clearly based on a misapprehension of the evidence. We need not and do not determine what the legal effect of this finding would have been.

14 . The officers also knew Gould had several arrests and at least one felony conviction for a crime of violence and was known for violent behavior.

15 . Nothing in the record intimates that the officers had any information even suggesting that Gould did not have or have ready access to a firearm or firearms or other lethal weapons.

16 . Where the relevant historic facts are undisputed (or are established by adequately supported district court findings) whether or not there is reasonable suspicion is a question of law. See, e.g., Blackwell v. Barton, 34 F.3d 298, 305 (5th Cir.1994); United States v. McSween, 53 F.3d 684, 687 n. 5 (5th Cir.1995); 5 LaFave, Search and Seizure (3d Ed.) § 11.7(c) at 406-07 ("... the clearly erroneous standard is applied to severable underlying facts while the de novo standard is applied to the ultimate question whether those facts add up to reasonable suspicion”). Moreover, it is clear that the district court never found there was not the requisite reasonable suspicion. On the contrary, it described its holding as follows: "[t]his court noted the defendant's violent past, and did not dispute that the officers were justified in viewing the defendant as a violent and potentially dangerous individual ... the officers’ search of the bedroom did not exceed the acceptable scope of a protective sweep, which ... lasts no longer than is necessary to dispel the reasonable suspicion of danger." (emphasis added).

17 . And it is not clearly evident that that is so. There was certainly reasonable suspicion that Gould was hiding under the bed or in the closets, but such suspicion does not exclude the reasonable possibility that he had innocently stepped outside without intending to avoid the officers. Reasonable suspicion is just that, it is not probable cause or a more likely than not standard, and it does not exclude other reasonable possibilities.

18 . Officer Brown testified:

“After I determined immediately that he wasn’t in the room, I started to exit the bedroom, and at that time somebody in— and I don't remember who it was at this time — yelled, I think he just ran out of the back door, which is nearby, near the bedroom area. So I looked and, sure enough, the back door was wide open. So immediately I jumped out the back door looking to see if I could get a visual on him to try to locate him.”