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July 2015

THE

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Welcome to this installment of The Federal Law Enforcement Informer (The Informer). The Legal Training Division of the 

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This edition of The Informer may be cited as 7 INFORMER 15.
The Informer – July 2015

Case Summaries

United States Supreme Court

City of Los Angeles v. Patel: Whether a provision of the city’s municipal code 

that authorizes law enforcement officers to conduct warrantless inspection searches 

of hotel records is constitutional...........................................................................4

Kingsley v. Hendrickson: Whether the standard for judging a pre-trial detainee’s

excessive force claim against officers is an objective one or a subjective one......................5

 ♦

Circuit Courts of Appeals

Second Circuit

United States v. Bershchansky: Whether officers exceeded the scope of a warrant 

by searching an apartment that was not included in the warrant.........................................6

United States v. Thomas: Whether an officer in a child pornography investigation 

was required to include in his search warrant affidavit the name of the third-party 

software he used to establish probable cause to search the defendant’s computer......................7

Seventh Circuit

United States v. Shields: Whether officers established reasonable suspicion to 

stop the defendant........................................................................................................................8

United States v. Gary: Whether officers established probable cause to arrest 

the defendant................................................................................................................................8

Eighth Circuit

United States v. Trogdon: Whether officers established reasonable suspicion to 

stop and then frisk the defendant.................................................................................................9

United States v. Smith: Whether an officer lawfully extended the duration of a 

traffic stop after he smelled the faint odor of marijuana in the defendant’s vehicle.................10

Ransom v. Grisafe: Whether officers were entitled to qualified immunity for seizing 

the defendant after responding to a report of shots fired from his vehicle................................10

Court of Appeals for the Armed Forces

United States v. Keefauver: Whether officers exceeded the scope of a verbal search 

authorization when they conducted a protective sweep of the defendant’s entire house..........12

♦

2
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3
CASE SUMMARIES

United States Supreme Court

City of Los Angeles v. Patel, 576 U.S. ___ (2015), 2015 U.S. LEXIS 4065 (U.S. June 22, 

2015)

Los Angeles Municipal Code §41.49 requires hotel operators to record and keep specific 

information about their guests on the premises for 90 days. Section 41.49 also provides these

records “shall be made available to any officer of the Los Angeles Police Department for 

inspection . . . at a time and in a manner that minimizes any interference with the operation of 

the business.” A hotel operator’s failure to make records available to an officer upon demand 

is a criminal misdemeanor, punishable by up to six months in jail and a $1,000 fine.

Patel, a motel owner in Los Angeles, sued the city, asking the court to prevent the continued 

enforcement of §41.49’s warrantless inspection provision. Patel argued that as written, or on 

its face, §41.49 violated the Fourth Amendment’s prohibition against unreasonable searches 

and seizures. 

The Ninth Circuit Court of Appeals agreed. Although Patel did not allege that an 

unconstitutional search occurred at his motel, the court nevertheless held that § 41.49 was 

invalid on its face. Specifically, the court concluded §41.49 violated the Fourth Amendment

because it authorized the inspection of hotel records without allowing the hotel owner an 

opportunity to obtain judicial review of the reasonableness of an officer’s demand before 

being potentially jailed or fined for refusing to comply. The City of Los Angeles then 

appealed to the United States Supreme Court.

The Supreme Court, in a 5-4 decision, first held that Patel was entitled to challenge the 

constitutionality of §41.49 on its face, or without first having alleged that his hotel was 

subjected to an unconstitutional search under §41.49. The court further held the provision of 

§41.49 that requires hotel operators to make their registries available to the police upon 

demand was unconstitutional because it penalized the hotel operators for declining to turn 

over their records without affording them any opportunity for pre-compliance review. 

The court reiterated the well-settled rule that warrantless searches of homes or commercial 

premises are per se unreasonable, unless they fall within one of the few established exceptions 

to the Fourth Amendment’s warrant requirement. One of these exceptions provides for 

warrantless administrative searches. The primary purpose of an administrative search is to 

ensure compliance with some type of governmental record keeping, health or safety 

requirement, and not for the discovery of criminal evidence. Under such circumstances, the 

court recognized the Fourth Amendment’s warrant and probable cause requirements were not 

practical; therefore, it was reasonable to allow warrantless administrative searches. However, 

the court held for an administrative search to be constitutional, the subject of the search must 

be afforded an opportunity to obtain pre-compliance review of the lawfulness of the search

before a neutral decision maker. Without deciding the exact form an opportunity for precompliance review must take, the court indicated that an administrative subpoena would be 

sufficient in most cases. For example, in this case, if a subpoenaed hotel operator believed 

that an attempted search of his records was unlawful, he could request an administrative law 

4
judge quash the subpoena before he suffered any criminal penalties for failure to comply with 

the subpoena. Conversely, if an officer reasonably suspected a hotel operator might tamper 

with the requested records while the motion before the judge is pending, the officer would be 

able to guard the records until the required hearing occurred. Finally, the court stressed that 

its holding had no bearing on cases where exigent circumstances would allow a warrantless 

records search or where the record owners consented to the search.

Click HERE for the court’s opinion.

*****

Kingsley v. Hendrickson, 576 U.S. ___ (2015), 2015 U.S. LEXIS 4073 (U.S. June 22, 

2015)

Kingsley was arrested and detained in a county jail pending trial. Officers forcibly removed 

Kingsley from his cell after he refused to comply with instructions to remove a piece of paper 

that was covering the light fixture above his bed. Kingsley later filed a lawsuit under 42 

U.S.C. § 1983, alleging the officers used excessive force against him, in violation of the 

Fourteenth Amendment’s Due Process Clause when they removed him from his cell. 

The district court instructed the jury that to prevail, Kingsley had to establish the officers 

acted with malice and intended to harm Kingsley when they used force against him, a 

subjective standard. Kingsley disagreed, arguing the correct standard for judging a pretrial 

detainee’s excessive force claim is objective unreasonableness.

The United States Supreme court accepted the case to resolve a split among the circuits and 

determine whether to prove an excessive force claim, a pretrial detainee must show the 

officers were subjectively aware their use of force was unreasonable, or only that the officers’ 

use of that force was objectively unreasonable. 

The Court concluded the appropriate standard to apply to a pretrial detainee’s excessive force 

claim is an objective one. First, the court noted this holding is consistent with court 

precedent. In Bell v. Wolfish, the court held a pretrial detainee could prevail on an excessive 

force claim by providing objective evidence the alleged use of force was not related to a 

legitimate governmental objective or that the force was excessive in relation to the alleged 

reason for its use. Second, the court held an objective standard is “workable,” as many 

facilities, including the one in this case, train officers to interact with all detainees as if the 

officers’ conduct is subject to an objective reasonableness standard. Finally, the court held 

the use of an objective standard protects an officer who acts in “good faith.” The court

recognized that running a detention facility is difficult and that officers facing disturbances 

are often forced to make split-second judgments in circumstances that are tense, uncertain and 

rapidly evolving. In addition, the court explained as part of the objective reasonableness 

analysis, it is appropriate to give deference to a facility’s policies and practices, which are in 

place to maintain order and institutional security. 

Click HERE for the court’s opinion.

*****

5
Circuit Courts of Appeal

Second Circuit

United States v. Bershchansky, 788 F.3d 102 (2d Cir. 2015)

Federal agents suspected Bershchansky was offering child pornography for others to 

download on a peer-to-peer file-sharing network. The agents believed Bershchansky lived in 

apartment number 2 in a multi-family dwelling that contained three apartments. As a result, 

the agents obtained a warrant to search 2462 Gerritsen Avenue, Apt. #2, and seize evidence of 

child pornography. During a pre-search briefing, the agents’ Enforcement Operation Plan 

repeatedly identified Apartment 2 as the place to be searched and included no other physical 

description of the building. 

When the agents arrived at the building located at 2462 Gerritsen Avenue, they entered 

Apartment 1 and conducted their search, seizing a desktop computer and two external hard 

drives. Photographs of the exterior of building clearly showed that both the outer and inner 

doors to the apartments located within the building were clearly marked “1” and “2.” 

Bershchansky was present during the search of Apartment 1 and admitted to receiving and 

possessing child pornography. A forensic examination of the seized computer and hard drives 

revealed files containing child pornography. Bershchansky was arrested and charged with 

possession of child pornography. 

Bershchansky filed a motion to suppress his incriminating statement and the evidence 

discovered in the search of Apartment 1. 

The district court concluded the agents exceeded the scope of the warrant by searching 

Apartment 1 because the warrant only authorized the agents to search Apartment 2. As a 

result, the court ordered the suppression of the evidence seized and Bershchansky’s 

statements made during the execution of the warrant. The government appealed.

The court of appeals affirmed the district court, holding it was apparent from the face of the 

warrant as well as the agent’s supporting affidavit that the magistrate judge authorized a 

search of Apartment 2 only. The finding of probable cause was based on evidence that child 

pornography was being shared from a computer with an internet protocol (IP) address the 

agent believed was associated with a user in Apartment 2. In addition, the agent repeatedly 

referred to Apartment 2 in his affidavit and represented that he received confirmation from the 

internet service provider, the utility company and a neighbor that Apartment 2 was the 

apartment in question. Consequently, when the agents searched Apartment 1 rather than 

Apartment 2, they searched an apartment the magistrate judge did not authorize them to 

search. When they did so, the agents conducted a warrantless search in violation of the 

Fourth Amendment. 

The court further held the good faith exception to the exclusionary rule did not apply because 

it was not objectively reasonable for the agents to believe they were authorized to search 

Apartment 1 when the warrant clearly authorized only a search of Apartment 2. The court 

added that a reasonable police officer would have recognized the warrant authorized only a 

search of Apartment 2. The court further stated a reasonable police officer would have 

6
contacted the magistrate for permission to search Apartment 1 instead of bypassing 

constitutionally mandated procedure and taking a shortcut.

Click HERE for the court’s opinion.

*****

United States v. Thomas, 2015 U.S. App. LEXIS 9733 (2d Cir. Vt. June 11, 2015)

During an investigation into child pornography offenses committed by using peer-to-peer 

(P2P) file-sharing software, an officer used an automated software program called Child 

Protective Systems (CPS) to identify an internet protocol (IP) address traced to Thomas’ 

house that offered to share images and video files tagged as child pornography. A private 

company created CPS, which it licenses to law enforcement agencies. Before CPS was 

available, officers would attempt to detect files containing child pornography by manually 

sending out search queries over P2P networks. CPS automates this process by canvassing 

P2P networks, identifying files that contain child pornography, cataloguing this information, 

and providing officers with a list of the online users who are sharing these files over P2P 

networks. After the officer confirmed the files identified by CPS constituted child 

pornography by comparing their hash values with the hash values of images of known child 

pornography, he obtained a warrant to search Thomas’ house and computers. In his affidavit, 

the officer provided a detailed explanation of P2P file sharing, how P2P child file-sharing 

software is used to exchange child pornography, how CPS was used in the investigation and a 

description of the files that CPS detected on Thomas’ computer. The affidavit did not identify 

the company that created CPS nor did it refer to the CPS software by name. After files 

containing child pornography were discovered on Thomas’ computer, he was arrested.

Thomas argued the evidence discovered on his computer should have been suppressed 

because the officer omitted from the search warrant affidavit the fact that CPS, a third-party 

software source, generated the information upon which the government relied to establish 

probable cause. Thomas also argued the search warrant affidavit did not include any 

information regarding the reliability of the CPS software. 

The court disagreed. First, the CPS software merely aggregated existing public information; 

therefore, the fact that a third party created it was not relevant. In addition, Thomas provided 

no authority to support his argument that the government was required to disclose the 

commercial name of the software used to uncover evidence of his crime. The court noted that 

just as an informant’s name can be presented anonymously in an affidavit, so can a 

company’s name. Probable cause determinations are made on the veracity of an informant’s 

information, not on the informant’s name. Similarly, the court found the primary relevance of 

automated third-party software is not in the name of the software, but in how the software 

works. In this case, the officer described in his affidavit the CPS software’s purpose and then 

described in considerable detail how the software operated. No additional or more specific 

information was required. 

The court further held the search warrant affidavit established the reliability of the CPS 

software. The officer verified and corroborated the information received from CPS through a 

hash value analysis and made a reasonable argument that evidence of a crime would be found 

on Thomas’ computer. 

Click HERE for the court’s opinion.

7
*****

Seventh Circuit

United States v. Shields, 2015 U.S. App. LEXIS 10058 (7th Cir. Ill. June 15, 2015)

Two police officers saw Shields’ parked SUV partially blocking a crosswalk, in violation of 

the law. One of the officers approached Shields, who was sitting in the driver’s seat of the

SUV and asked for his driver’s license. After handing the officer his license, Shields 

voluntarily exited the SUV and at the officer’s request, walked toward the rear of the vehicle 

with the officer. When Shields reached the rear of the SUV, he did not stop to talk to the 

officers, but instead fled down the street. While chasing Shields on foot, one of the officers 

saw Shields pull a firearm out of his coat pocket. The officer caught Shields in an alley and 

pushed him to the ground. The officer handcuffed Shields and discovered a loaded revolver 

on the ground underneath him. The government charged Shields with being a felon in 

possession of a firearm. 

Shields filed a motion to suppress the firearm, arguing the officers conducted an unlawful 

traffic stop.

First, the court held when the officers saw Shields’ SUV blocking the crosswalk, they had 

reasonable suspicion to conduct a Terry stop to investigate the parking offense. Second, 

Shields’ decision to run from the officers constituted another violation because Shields was 

interfering with the performance of the officers’ duty to investigate and, if appropriate, hold 

him accountable for the parking violation. Finally, once the officer saw Shields remove the 

firearm from his pocket he had probable cause to arrest Shields for unlawful carrying of a 

firearm. As a result, the court held the officer lawfully seized Shields when he tackled 

Shields in the alley and lawfully seized the firearm, which was in plain sight on the ground 

underneath Shields. 

Click HERE for the court’s opinion.

*****

United States v. Gary, 2015 U.S. App. LEXIS 10381 (7th Cir. Ill. June 19, 2015)

An undercover officer saw Gary talking on a cell phone in the passenger seat of a car when 

the officer bought heroin from the driver of the car. During this time, the driver did not 

attempt to conceal the drug transaction from Gary. A short time later, uniformed officers 

conducted a traffic stop of the car at the request of narcotics officers. During the stop, officers 

discovered heroin on the driver of the car and arrested him. In addition, the officers 

handcuffed and transported Gary to the police station so his parole officer could speak to him. 

The government later indicted Gary for conspiracy to distribute heroin. 

Gary argued the officers did not have probable cause to seize him and transport him to the 

police station because the arresting officer admitted the sole reason Gary was seized was to 

bring him to speak with his parole officer. Gary also argued his mere presence in the car with 

the driver who sold drugs to the undercover officer was not enough to establish probable 

cause to arrest him. 

While conceding that Gary’s seizure amounted to an arrest, the government argued Gary’s 

arrest was supported by probable cause.

8
The court agreed with the government, holding the arresting officer’s subjective intent in 

arresting Gary was irrelevant as long as there was objective probable cause for the arrest. 

Here, the court concluded there was probable cause for the undercover officer to believe Gary 

conspired with the driver of the car who sold him the heroin. First, Gary was sitting next to 

the driver when the driver sold the officer heroin without any attempt to conceal the 

transaction. In such close quarter, the court determined it was reasonable to infer that Gary 

and the driver were probably engaged in a common criminal enterprise. Given the reasonable 

inference that Gary was engaged in a common and unlawful enterprise with the driver, the 

officer did not arrest Gary because of his mere presence in the car. 

Click HERE for the court’s opinion.

*****

Eighth Circuit

United States v. Trogdon, 2015 U.S. App. LEXIS 10243 (8th Cir. Iowa June 18, 2015)

At approximately 1:00 a.m., officers in a marked squad car were patrolling an area near a 

commercial building where a shooting had recently occurred as well as other violent crimes 

and criminal activity. When the officers saw five individuals loitering near the building, 

which was closed for business, they decided to investigate whether or not the group was 

trespassing. The officers knew one of the occupants of the building had posted “No 

Trespassing” signs on the property and had filed a letter of trespass with the city, requesting 

police assistance in keeping the property free of trespassers. When the officers got close to 

the group, the officers recognized that one of the individuals was a gang member who was

also a suspect in a murder investigation. Upon seeing the squad car, the group began to walk 

briskly away from the approaching officers down a blocked-off street. As the group walked 

away, officers saw Trogdon place something on the ground. The officers ordered Trogdon to 

stop, and when he did, an officer grabbed Trogdon’s arm and attempted to frisk him. When 

Trogdon pulled away from the officer, another officer took him to the ground and handcuffed 

him. Trogdon then told the officers he had a firearm, and the officers found a handgun 

concealed in the waistband of his pants. Trogdon was charged with being a felon in 

possession of a firearm. 

Trogdon argued the handgun should have been suppressed because the officers did not have 

reasonable suspicion to stop and frisk him.

The court disagreed. First, the officers saw Trogdon loitering late at night near a commercial 

building, which was located in a high-crime area. Second, the officers knew one of the 

building’s occupants had posted “No Trespassing” signs and had requested police assistance 

in removing trespassers. Third, because it was late at night, the officers knew the businesses 

in the building were closed and there did not appear to be a legitimate reason for Trogdon and 

the others to be on the property. Based on these facts, the court concluded the officers 

established reasonable suspicion that Trogdon and the others were trespassing; therefore, they 

were entitled to conduct a Terry stop. 

The court further held the officers were entitled to conduct a Terry frisk because they 

established reasonable suspicion that Trogdon was armed and dangerous. First, the officers 

knew that one of the members of the group was a murder suspect. As a result, the officers 

9
were entitled to take Trogdon’s association with this person into account in determining 

whether Trogdon might also be armed. Second, after noticing the officers, the group 

immediately began to walk away from the officers down a blocked-off street where it would 

be difficult for a police car to follow. Finally, the officers saw Trogdon place something on 

the ground as he walked away, suggesting that he was trying to hide something from the 

officers. 

Click HERE for the court’s opinion.

*****

United States v. Smith, 2015 U.S. App. LEXIS 10337 (8th Cir. Minn. June 19, 2015)

An officer stopped Smith for speeding. While speaking with Smith, the officer noticed a 

“slight odor of marijuana” coming from within Smith’s car. After Smith denied consent to 

search, the officer requested a K-9 to conduct a dog sniff of Smith’s car. As the K-9 unit 

approached, Smith sped away from the scene. After a brief vehicle pursuit, Smith abandoned 

his car and fled on foot. Smith escaped; however, the officers searched his car and found two 

kilograms of cocaine, a large sum of currency and a loaded handgun. Officers later arrested 

and charged him with drug and weapons offenses.

Smith argued the evidence seized from his car should have been suppressed because the faint 

smell of marijuana detected by the officer did not justify extending the duration of the traffic 

stop for speeding. 

The court disagreed. The Eighth Circuit has held numerous times that the smell of marijuana, 

whether faint or strong, coming from a vehicle during a lawful traffic stop, gives an officer 

probable cause to search the vehicle for drugs. Here, the officer testified he had been trained 

in the detection of controlled substances, including the odor of marijuana. As a result, the 

officer had probable cause to search Smith’s car once he smelled the odor of marijuana, even 

though he took the less intrusive approach by calling the K-9 unit to conduct a sniff of 

Smith’s car first.

In addition, the court held the evidence seized from Smith’s car was admissible as Smith gave 

up any reasonable expectation of privacy in his car and its contents when he abandoned it on 

side of the road after leading the officers on a high-speed chase. 

Click HERE for the court’s opinion.

*****

Ransom v. Grisafe, 2015 U.S. App. LEXIS 10441 (8th Cir. Mo. June 22, 2015)

Ransom was driving home from work on a dark, raining night. When his van began to 

backfire, Ransom pulled over to the side of the road. Someone who heard the sounds from 

Ransom’s van called 911 and reported that gunshots had been fired from or near the van. 

Two patrol officers responded and pulled up behind Ransom’s van. Seconds later, the van 

backfired again, and the driver’s-side door opened. One of the officers yelled at Ransom to 

get back into the van, but Ransom, appearing not to hear the command, stepped out. At that 

time, both officers fired a total of eight shots at Ransom. Ransom did not react as if he had 

been shot, nor did he appear to notice the officers had fired at him. The officers ordered 

Ransom to lie on the ground and he complied. When the officers asked Ransom about the 

10
gunshots, Ransom told them his van was backfiring. The officers told Ransom his van could 

not be backfiring because one of the windows on their patrol car had been shot out. When 

other officers arrived on the scene, a sergeant directed two detectives to transport Ransom to 

the police station to be interviewed. The detectives transported Ransom to the station where 

they spoke to him for approximately thirty-five minutes before releasing him. The

investigation revealed that Ransom’s van had been backfiring, and that ricocheting bullets 

fired from the officers’ guns had caused the damage to their patrol car.

Ransom sued the patrol officers, claiming the officers seized him in violation of the Fourth 

Amendment by shooting at him and then by ordering him to lie and the ground and 

handcuffing him. 

The court disagreed. First, it was undisputed that none of the officers’ rounds hit Ransom. 

However, assuming Ransom was grazed by bullet or piece of broken glass, the court held that 

any seizure that resulted was reasonable. First, the officers responded to a 911 call of shots 

fired from a van. Second, when the officers arrived, Ransom’s van backfired; a sound that 

both sides agreed could have been mistaken for a gunshot. Third, Ransom then got out of the 

van and appeared to disregard the officer’s commands to get back inside. As a result, the 

officers were justified in firing their guns at Ransom to neutralize what they reasonably 

believed to be a threat to themselves. 

The court further held it was reasonable for the officers to order Ransom to the ground and 

handcuff him while they determined if there might be another person firing a gun at them. 

After detaining Ransom, the officers saw that one of their windows was shot out. Although it 

was later determined that a ricochet from one of the officers’ bullets caused the damage to the 

patrol car, at the time, it was reasonable for the officers to believe there might be another 

person firing at them. Consequently, the court held the patrol officers were entitled to 

qualified immunity. 

Ransom also sued the detectives, arguing they violated the Fourth Amendment by detaining 

him at the police station. 

Again, the court disagreed. When the detectives arrived on the scene, the sergeant provided 

them with the facts that were known at the time. At that point, the court held it was 

objectively reasonable for the detectives to detain Ransom and drive him to the police station 

for an interview to determine if he had fired a gun at the patrol officers.

Finally, Ransom sued the sergeant, claiming the sergeant violated the Fourth Amendment

rights by directing the detectives to obtain a statement from him at the police station.

The court held that even if the detectives had violated Ransom’s Fourth Amendment rights by 

detaining him, the sergeant could not be held liable for a seizure effected by other officers.

Click HERE for the court’s opinion.

*****

11
Court of Appeals for the Armed Forces

United States v. Keefauver, 2015 CAAF LEXIS 547 (C.A.A.F. June 12, 2015)

Postal inspectors discovered a heavily taped box that smelled of marijuana. Because the box

was addressed to a house within Fort Campbell, Kentucky, the postal inspectors contacted a 

special agent with Criminal Investigation Command (CID) office’s Drug Suppression team. 

The CID agent transported the box to Fort Campbell and obtained verbal authorization from 

the military magistrate to conduct a controlled delivery. The military magistrate authorized 

the agents to enter the house after the box was taken inside, seize the box and then search the 

room or immediate area in which the box was found. 

Before conducting the controlled delivery, the agents discovered Keefauver, his wife, his 

sixteen-year old stepson, and his thirteen-year old son lived in the house. In addition, the 

agents learned that no one at the house had a firearm registered in his or her name. Before 

conducting the controlled delivery, the agents maintained surveillance on the house for onehour, but during that time, they did not see anyone enter or exit. After one-hour, a postal 

inspector knocked on the front door, and when no one answered, he left the box on the front 

porch. The box remained on the porch until Keefauver’s sixteen-year old stepson arrived 

home approximately one-hour later and took the box inside. At that point, CID agents and 

postal inspectors knocked on the door, and when the stepson answered it, they told him they 

would be conducting a search. After the stepson became verbally abusive, the agents 

handcuffed him and seated him outside the house next to the garage. The lead CID agent 

entered the house and found the box in the hallway, ten-feet from the door. After the agent 

noticed a strong odor of marijuana in the house, he decided to conduct a “security sweep” of 

the entire house. While sweeping the kitchen, the agent saw drug paraphernalia on the 

counter. On the second floor, the agent saw in plain view, marijuana and drug paraphernalia 

in the stepson’s room, rifles in an unlocked walk-in closet off the hallway, and suspicious 

boxes in the master bedroom. Based on a misunderstanding of the verbal search 

authorization, the agents then conducted a second, full search of the home with military 

working dogs (MWDs). 

Keefauver was convicted of wrongfully possessing marijuana, drug paraphernalia, and 

unregistered weapons on post as well as child endangerment in violation of several Articles of 

the Uniform Code of Military Justice. 

Keefauver filed a motion to suppress all evidence, other than the original that contained 

marijuana, arguing, agents exceeded the scope of the military magistrate’s search 

authorization by conducting a full sweep of his house. Specifically, Keefauver claimed the 

search authorization limited the agents to locating the box after the controlled delivery and 

searching the immediate area around the box.

The Court of Appeals for the Armed Forces agreed. In Maryland v. Buie, the United States 

Supreme Court created the “protective sweep” exception to the Fourth Amendment’s warrant 

requirement. In Buie, the court authorized two types of protective sweeps. In the first type of 

sweep, officers may search only spaces immediately adjoining the place of arrest from which 

“an attack could be immediately launched,” during or after an arrest. Officers may conduct 

this type of sweep as a precautionary measure, without reasonable suspicion or probable 

cause. The second, more extensive sweep authorized in Buie allows officers to make a 

protective sweep of areas beyond those immediately adjoining the place of arrest. To conduct 

12
this type of sweep, officers must establish reasonable suspicion that the area to be swept 

harbors an individual who poses a threat to the officers. This type of sweep does not allow 

officers to conduct a full search of the premises, but rather only a search of areas or spaces 

where a person may be found. While Buie addressed the issue of protective sweeps in the 

context of arrests, a majority of federal circuits have held that officers who lawfully enter a 

home for reasons other than effecting an arrest, may make a protective sweep, as long as the 

Buie criteria are met.1

In this case, the court held the extensive protective sweep conducted of the entire house was 

unlawful, as the lead agent did not testify that he believed anyone was in the house after the 

stepson was taken outside. Instead, the agent testified the sweep of the entire house was 

“standard procedure.” The court emphasized this practice was in “perfect opposition” to the 

criteria from Buie, which requires reasonable suspicion to believe the area to be swept harbors 

an individual that poses a threat to the officers. 

Even if the agent had testified he believed there was someone else in the house after the 

stepson was removed, the court concluded the facts presented would not have supported this 

conclusion. First, the agents conducted surveillance of the house for one-hour, during which 

time they did not see anyone enter or exit the house. Second, when the postal inspector 

knocked on the door to conduct the controlled delivery, no one answered the door. Third, 

after the postal inspector left the box on the porch, it remained there for approximately onehour until the stepson arrived home and took the box inside. Fourth, when the agents entered 

the house, they handcuffed the stepson and detained him outside. Finally, one of the agents 

testified that before the stepson arrived at the house, the agent believed that “nobody was 

home.” 

Click HERE for the court’s opinion.

*****

1 Only the Tenth Circuit and one panel of the Ninth Circuit have read Buie so narrowly as to limit the scope of a 

protective sweep to in-home arrests only.

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