UNITED STATES, Appellee 

v. 

Levi A. KEEFAUVER, Specialist 

U.S. Army, Appellant 

No. 15-0029 

Crim. App. Dkt. No. 20121026 

United States Court of Appeals for the Armed Forces 

Argued April 15, 2015 

Decided June 12, 2015 

RYAN, J., delivered the opinion of the Court, in which BAKER 

C.J., and ERDMANN, STUCKY, and OHLSON, JJ., joined. 

Counsel 

For Appellant: Captain Patrick J. Scudieri (argued); Lieutenant 

Colonel Jonathan F. Potter, Colonel Kevin Boyle, and Major Amy 

E. Nieman (on brief). 

For Appellee: Captain Benjamin W. Hogan (argued); Major A. G. 

Courie III and Colonel John P. Carrell (on brief); Major Daniel 

Derner. 

Amicus Curiae for Appellant: Curtis J. Hinca (law student) 

(argued); Catherine E. White (law student) and Steven H. Wright, 

Esq. (supervising attorney) (on brief) - University of Wisconsin 

Law School. 

Amicus Curiae for Appellee: Veronica Sustic (law student) 

(argued); Jake Blair (law student) and John A. Pray, Esq. 

(supervising attorney) (on brief) - University of Wisconsin Law 

School. 

Military Judges: Timothy Grammel and Steven Walburn 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 

 
United States v. Keefauver, No. 15-0029/AR 

2 

Judge RYAN delivered the opinion of the Court. 

A military judge sitting as a general court-martial 

convicted Appellant, contrary to his pleas, of two 

specifications of violating of a lawful general regulation by 

wrongfully possessing drug paraphernalia and unregistered 

weapons on post, one specification of wrongful possession of 

marijuana, and one specification of child endangerment in 

violation of Articles 92, 112a, and 134, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a, 934 (2006). 

Appellant was sentenced to a bad-conduct discharge, four years’ 

confinement, forfeiture of all pay and allowances, and reduction 

to the grade of E–1. The convening authority approved the 

sentence as adjudged. 

The United States Army Court of Criminal Appeals (ACCA) 

reviewed the case pursuant to Article 66, UCMJ, 10 U.S.C. § 866 

(2012), and affirmed.1

 United States v. Keefauver, 73 M.J. 846, 

848, 858 (A. Ct. Crim. App. 2014). We granted Appellant’s 

petition to review the following issue only: 

WHETHER THE ARMY COURT ERRED IN FINDING THE PROTECTIVE 

SWEEP WAS APPROPRIATE IN TOTAL. 

 

1

 Oral argument in this case was heard at University of Wisconsin 

Law School, Madison, Wisconsin, as part of the Court’s “Project 

Outreach.” See United States v. Mahoney, 58 M.J. 346, 347 n.1 

(C.A.A.F. 2003). This practice was developed as part of a 

public awareness program to demonstrate the operation of a 

federal court of appeals and the military justice system. 
United States v. Keefauver, No. 15-0029/AR 

3 

We hold that the military judge and ACCA erred in upholding 

the protective sweep. As both the evidence in support of the 

bulk of the charges and the entirety of the ACCA’s opinion are 

inextricably intertwined with the protective sweep of 

Appellant’s home, we reverse the ACCA and remand for further 

proceedings consistent with this opinion. 

I. FACTS 

On December 8, 2011, between 7:30 a.m. and 7:45 a.m., 

postal inspectors at the Louisville, Kentucky, postal processing 

center notified Inspector Steven Lamp in Bowling Green, 

Kentucky, that they had discovered a suspicious, heavily taped 

box that smelled of marijuana. They transported the package to 

Bowling Green, where Inspector Lamp determined, based on his 

training and experience, that the box, measuring fifteen inches 

by twelve inches by ten inches and weighing eight pounds, likely 

contained marijuana. He determined that no one by the sender’s 

name, “B. Samuelson,” currently resided at the California return 

address, but that Appellant and his wife, to whose joint 

residence the package was addressed, had previously claimed that 

California address as their own. Because the package was 

addressed to a Fort Campbell address, Inspector Lamp notified 

the Criminal Investigation Command (CID) office’s Drug 

Suppression Team Chief, Special Agent (SA) Steven Roche. At SA 

Roche’s request, Inspector Lamp and two other inspectors 
United States v. Keefauver, No. 15-0029/AR 

4 

transported the package to Fort Campbell, joining SA Roche at 

CID by late morning. 

At approximately 11:00 a.m., SA Roche obtained verbal 

authorization from Captain (CPT) Mark Robinson, the military 

magistrate, to conduct a “controlled delivery,” whereby a postal 

inspector would pose as the regular mail carrier and agents 

would enter the house after the package was taken inside to 

seize the box and search the room or immediate area in which it 

was found.2

 At approximately 1:00 p.m. at CID, a military 

working dog (MWD) “alerted on the box,” confirming it likely 

contained a controlled substance. Agents took the package from 

CID to the Fort Campbell Post Office, where it was scanned as 

having arrived at 1:14 p.m. SA Roche then arranged for 

surveillance teams in front of and behind Appellant’s house as 

well as down the street. 

Agents knew four persons lived at the address -- Appellant; 

his wife; his sixteen-year-old stepson, TC-D; and his thirteenyear-old son, EK -- but that none had been seen entering or 

exiting since surveillance began. They also knew that no one at 

the address had a firearm registered in his or her name. 

 

2

 The confusion over the exact terms and parameters of CPT 

Robinson’s verbal authorization at trial highlights the danger 

of using a verbal rather than a written authorization to search. 

The record supports the military judge’s finding that the 

authorization was limited to the box itself. United States v. 

Burris, 21 M.J. 140, 144 (C.M.A. 1985). 
United States v. Keefauver, No. 15-0029/AR 

5 

A postal investigator made the controlled delivery at 2:36 

p.m., first knocking on the door, then, when no one answered, 

leaving the package on the porch next to the front door. The 

package remained on the porch until TC-D arrived home at 3:20 

p.m. and took it inside. Shortly thereafter, CID agents and 

postal inspectors moved in, knocking on the front door. When 

TC-D answered the door, agents informed him that they would be 

conducting a search. In response, TC-D became verbally abusive. 

Agents asked TC-D to step outside, where they handcuffed him and 

seated him next to the garage. SA Roche entered the home and 

found the package in the hallway, ten feet from the entrance. 

He noticed a strong odor of marijuana in the house.3 SA Roche 

conducted what he characterized as a “security sweep” of the 

entire house. While sweeping the kitchen, SA Roche saw drug 

paraphernalia on the counter. On the second floor, SA Roche 

discovered a bag of what appeared to be marijuana as well as 

additional drug paraphernalia in TC-D’s room, rifles in an 

unlocked walk-in closet off the hallway, and suspicious boxes in 

the master bedroom, all in plain view. Based on a 

misunderstanding of the verbal search authorization, agents then 

 

3

 We did not grant the issue, and do not decide the question, 

whether it was improper for the ACCA to consider evidence that 

agents smelled marijuana in the house, which evidence was not 

before the military judge when he ruled on the motion to exclude 

evidence from the protective sweep. Resolution of that question 

does not affect the outcome in this case. 
United States v. Keefauver, No. 15-0029/AR 

6 

reentered the house and conducted a second, full search of the 

home with MWDs. 

Before trial, Appellant moved to suppress all evidence 

other than the box of marijuana on the grounds that the search 

authorization to seize it was defective in relation to the 

search of his home. Appellant argued that the authorization to 

do anything other than seize the package inside his home was not 

based on probable cause, as the package was addressed to the 

residence rather than its residents, and, moreover, that the 

authorization failed to describe the place to be searched and 

things to be seized with requisite particularity. Applying a 

standard echoing Maryland v. Buie, 494 U.S. 325, 334 (1990), the 

military judge denied the motion on the ground that the evidence 

resulting from “the continued search of the house . . . beyond 

what the magistrate had authorized” after the protective sweep 

“would have inevitably been discovered,” as “there was 

overwhelming evidence to support a request for search 

authorization” based on the box’s delivery plus the “marijuana, 

drug paraphernalia, and weapons in that residence” seen during 

the protective sweep. In his view, the protective sweep was 

proper because agents could reasonably have believed “an 

individual or individuals who posed a danger to the agents may 

have been hiding in the residence” given the quantity of 

marijuana present and the inference that residents were engaging 
United States v. Keefauver, No. 15-0029/AR 

7 

in drug distribution, as “[i]t is common knowledge that drug 

trafficking involves violence, including the use of weapons.” 

The military judge concluded that TC-D’s hostile response to the 

agents’ announced intent to enter the house and conduct a search 

supported this belief. 

II. ACCA DECISION 

The ACCA affirmed the ruling of the military judge that the 

protective sweep was valid under Buie based on the facts that 

the package containing marijuana was taken inside the home; 

Appellant, his wife, and their two sons lived there; agents’ 

lack of information about the adults’ whereabouts; and TC-D’s 

reaction to the agents’ presence. Keefauver, 73 M.J. at 853-54. 

Moreover, the ACCA determined that expert testimony on the 

suppression motion from Inspector Lamp asserting that “guns 

follow drugs,” while it could not per se authorize a protective 

sweep, could be considered by the military judge in conjunction 

with the other facts. Id. at 853. The ACCA went on to hold 

that evidence from the later post-sweep search of Appellant’s 

house using MWDs was properly admitted under the inevitable 

discovery doctrine because the drugs, weapons, and drug 

paraphernalia observed during the protective sweep provided 

agents with probable cause to seek a wider warrant. Id. at 

854-57. 
United States v. Keefauver, No. 15-0029/AR 

8 

III. DISCUSSION 

“When reviewing a decision of a Court of Criminal Appeals 

on a military judge’s ruling, ‘we typically have pierced through 

that intermediate level’ and examined the military judge’s 

ruling, then decided whether the Court of Criminal Appeals was 

right or wrong in its examination of the military judge's 

ruling.” United States v. Cabrera-Frattini, 65 M.J. 241, 246 

(C.A.A.F. 2007) (quoting United States v. Shelton, 64 M.J. 32, 

37 (C.A.A.F. 2006)) (quoting United States v. Siroky, 44 M.J. 

394, 399 (C.A.A.F. 1996)) (internal quotation marks omitted). 

This Court reviews a military judge’s decision to suppress 

evidence for an abuse of discretion. United States v. Monroe, 

52 M.J. 326, 330 (C.A.A.F. 2000) (citing United States v. Ayala, 

43 M.J. 296, 298 (1995)). Fact-finding is reviewed under the 

clearly erroneous standard while conclusions of law are reviewed 

de novo. Id. “[W]e consider the evidence in the light most 

favorable to the prevailing party.” United States v. Reister, 

44 M.J. 409, 413 (C.A.A.F. 1996) (internal quotation marks 

omitted). Whether facts in toto justify a protective sweep is a 

question of law. See United States v. Scroggins, 599 F.3d 433, 

440-41 (5th Cir. 2010); United States v. Cash, 378 F.3d 745, 747 

(8th Cir. 2004); United States v. Gould, 364 F.3d 578, 592 n.16 

(5th Cir. 2004), abrogated on other grounds by Kentucky v. King, 

131 S. Ct. 1849 (2011). But see United States v. Hauk, 412 F.3d 
United States v. Keefauver, No. 15-0029/AR 

9 

1179, 1185 (10th Cir. 2005) (mixed question of law and fact 

reviewed de novo). 

While we agree that the analysis in Buie may be properly 

applied to a protective sweep incident to execution of a search 

warrant for a home, we disagree that either of the two criteria 

that Buie established were satisfied by the facts of this case. 

A. 

The right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable searches 

and seizures, shall not be violated, and no Warrants shall 

issue, but upon probable cause, supported by Oath or 

affirmation, and particularly describing the place to be 

searched, and the persons or things to be seized. 

U.S. Const. amend. IV. In Buie, the Supreme Court created an 

exception to the Fourth Amendment for a “protective sweep,” 

which is “a quick and limited search of premises, incident to 

arrest and conducted to protect the safety of police officers or 

others.” 494 U.S. at 327. Buie acknowledged two types of 

protective sweeps. In the first type of sweep, which may be 

conducted “as a precautionary matter and without probable cause 

or reasonable suspicion,” agents may search only “closets and 

other spaces immediately adjoining the place of arrest from 

which an attack could be immediately launched” during or after 

an arrest. Id. at 334. The second, more extensive Buie

exception permits agents to make a protective sweep of areas 

beyond those immediately adjoining the place of arrest where 
United States v. Keefauver, No. 15-0029/AR 

10 

“articulable facts . . . taken together with the rational 

inferences from those facts . . . would warrant a reasonably 

prudent officer in believing that the area to be swept harbors 

an individual posing a danger to those on the arrest scene.” 

Id. “[S]uch a protective sweep, aimed at protecting the 

arresting officers, if justified by the circumstances, is 

nevertheless not a full search of the premises, but may extend 

only to a cursory inspection of those spaces where a person may 

be found.” Id. at 335. 

Buie analyzed the constitutional permissibility of a 

protective sweep in the context of arrest only, reasoning that 

in-home arrests create special dangers by placing agents on an 

“adversary’s ‘turf’” and exposing them to the unique threat of 

“[a]n ambush in a confined setting of unknown configuration.” 

Id. at 333. The Court noted, “[a] protective sweep . . . occurs 

as an adjunct to the serious step of taking a person into 

custody for the purpose of prosecuting him.” Id.

This Court has not elsewhere addressed the question whether 

the protective sweep doctrine applies beyond the context of an 

in-home arrest. Cf. United States v. Khamsouk, 57 M.J. 282, 304 

(C.A.A.F. 2002). However, a majority of federal circuit courts 

have held that agents entering a home lawfully for an objective 

other than arrest may make a protective sweep so long as the 

Buie criteria are met. In their view, the same concerns 
United States v. Keefauver, No. 15-0029/AR 

11 

underlying officer safety in the context of an in-home arrest 

may pertain in equal measure when agents lawfully enter a home 

for some other purpose. See, e.g., United States v. Starnes, 

741 F.3d 804, 810-11 (7th Cir. 2013); United States v.

Caraballo, 595 F.3d 1214, 1225 (11th Cir. 2010); United States

v. Miller, 430 F.3d 93, 99-100 (2d Cir. 2005); United States v. 

Martins, 413 F.3d 139, 150 (1st Cir. 2005); Leaf v. Shelnutt, 

400 F.3d 1070, 1086-87 (7th Cir. 2005); Gould, 364 F.3d at 584; 

United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001); 

United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993); 

United States v. Patrick, 959 F.2d 991, 996-97 (D.C. Cir. 1992), 

abrogated on other grounds by United States v. Webb, 255 F.3d 

890 (D.C. Cir. 2001). Only the Tenth Circuit and one panel of 

the Ninth Circuit have read Buie so narrowly as to limit the 

protective sweep doctrine to in-home arrests only. See United 

States v. Davis, 290 F.3d 1239, 1242 n.4 (10th Cir. 2002); 

United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000). 

These cases place great interpretive weight on Buie’s focus on 

in-home arrests, 494 U.S. at 333-36, and its definition of a 

protective sweep as “incident to an arrest.” Id. at 327. 

Without question, the minority view is correct that Buie

specifically addressed only the facts of that case, surrounding 

a protective sweep incident to an in-home arrest. This does 

not, however, preclude application of Buie’s rationale to other 
United States v. Keefauver, No. 15-0029/AR 

12 

circumstances when consonant with, and a consistent extension 

of, Buie. See Miller, 430 F.3d at 99 (“Buie’s logic therefore 

applies with equal force when officers are lawfully present in a 

home for purposes other than the in-home execution of an arrest 

warrant . . . .”). We agree with the majority of federal 

circuits that, as with an arrest, executing a search warrant in 

a home can present the dangers upon which the rationale of Buie

was based, as it, too, places agents on the occupant’s “turf,” 

at a disadvantage, and is an adjunct to a “serious step,” since 

probable cause to conduct a search for evidence has been 

established and may result in arrest and prosecution. Buie, 494 

U.S. at 333. 

B. 

While we thus squarely hold that, under Buie, agents 

entering a home lawfully may be entitled to make the second, 

more extensive type of protective sweep to ensure their safety, 

this extension of Buie to non-arrest situations should not be 

mistaken for a liberalization of the criteria required before 

such a sweep is constitutionally permissible. The fact that 

agents may conduct a protective sweep incident to a lawful entry 

under Buie so long as the sweep does not last longer “than is 

necessary to dispel the reasonable suspicion of danger,” id. at 

336, does not answer the altogether different question whether 

any facts supported the belief that there were people other than 
United States v. Keefauver, No. 15-0029/AR 

13 

TC-D present in the home in this case and, if so, that they 

presented a danger to the agents. We conclude that the facts 

here did not and that, absent such facts, the extensive 

protective sweep conducted of the entire home was not warranted. 

The circumstances under which facts warrant an extensive 

protective sweep are specific. Id. at 327, 334. Buie notes 

that this broader protective sweep exception applies only “if 

the searching officer ‘possess[ed] a reasonable belief based on 

“specific and articulable facts which, taken together with the 

rational inferences from those facts, reasonably warrant[ed]” 

the officer in believing’ that the area swept harbored an 

individual posing a danger to the officer or others.” 494 U.S. 

at 327 (quoting Michigan v. Long, 463 U.S. 1032, 1049–50 (1983)) 

(quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)) (brackets in 

original) (emphasis added); see United States v. Ford, 56 F.3d 

265, 269 n.3 (D.C. Cir. 1995) (interpreting Buie to require the 

lower court to determine “whether the searching officer 

possessed ‘a reasonable belief based on specific and articulable 

facts that the area to be swept harbors an individual posing a 

danger to those on the arrest scene’” on remand). The opinion 

goes on to test this belief against an objective standard, 

requiring also that “articulable facts . . . taken together with 

the rational inferences from those facts . . . would warrant a 

reasonably prudent officer in believing that the area to be 
United States v. Keefauver, No. 15-0029/AR 

14 

swept harbors an individual posing a danger to those on the 

arrest scene.” Buie, 494 U.S. at 334 (emphasis added). The 

objective standard echoes Terry. 392 U.S. at 21-22 (noting “it 

is imperative that the facts [used to justify a search or 

seizure] be judged against an objective standard: would the 

facts available to the officer at the moment of the seizure or 

the search ‘warrant a man of reasonable caution in the belief’ 

that the action taken was appropriate?”). See, e.g., Miller, 

430 F.3d at 98 (“At the core of Terry, Long and Buie is the 

common understanding that the Fourth Amendment's reasonableness 

requirement is sufficiently flexible to allow officers who have 

an objectively credible fear of danger to take basic precautions 

to protect themselves.”); United States v. Garza, 125 F. App’x 

927, 931 (10th Cir. 2005) (“The Fourth Amendment allows a 

protective sweep if police have ‘a reasonable belief based on 

specific and articulable facts which, taken together with the 

rational inferences from those facts, reasonably warrant[s] the 

officer in believing that the area swept harbor[s] an individual 

posing a danger to the officer or others.’” (alterations in 

original) (internal citations and quotation marks omitted)); 

United States v. Biggs, 70 F.3d 913, 915 (6th Cir. 1995) 

(requiring searching agents to “articulate facts that would 

warrant a reasonably prudent officer to believe that the area to 
United States v. Keefauver, No. 15-0029/AR 

15 

be swept harbored an individual posing a danger to those on the 

scene”). 

It is thus eminently clear both that a protective sweep of 

the home “is decidedly not ‘automati[c],’” Buie, 494 U.S. at 

336, and that the facts in this case fails the test laid out in 

Buie. A protective sweep of the home requires specific, 

articulable facts and rational inferences from those facts 

supporting two beliefs: (1) that the areas to be swept harbor 

one or more individuals and (2) that the individual or 

individuals pose a danger to the agents or others. Id. at 334. 

The Government did not attempt to prove that the searching 

officer held either such belief, nor did it present facts and 

inferences that would objectively support either such belief. 

The searching officer, SA Roche, did not testify that he 

believed at any point that additional individuals were present 

and dangerous. Rather, in perfect opposition to Buie’s caution 

against “automatic” sweeps, SA Roche stated the sweep was 

“standard procedure.” While an officer’s mistake of law may 

sometimes bear on a potential Fourth Amendment violation, Heien 

v. North Carolina, 135 S. Ct. 530 (2014), that is not the case 

here. “The Fourth Amendment tolerates only reasonable mistakes, 

and those mistakes . . . must be objectively reasonable.” Id.

at 539. Unlike the North Carolina statute at issue in Heien, 

id. at 540, Buie’s requirements and its prohibition against 
United States v. Keefauver, No. 15-0029/AR 

16 

automatic sweeps are unambiguous. Any mistake of law on the 

part of SA Roche was not objectively reasonable. Moreover, in 

Heien, the officer’s “mistake of law relate[d] to the antecedent 

question of” reasonable suspicion for a stop, not the search 

itself, which was done with the appellant’s consent. Id. at 

539. “An officer’s mistaken view that the conduct at issue did 

not give rise to . . . a [Fourth Amendment] violation -- no 

matter how reasonable -- could not change that ultimate 

conclusion.” Id.

And assuming arguendo that SA Roche had testified to an 

articulable actual fear, we disagree with both the military 

judge and the ACCA that the facts presented, even viewed in the 

light most favorable to the Government, objectively supported a 

protective sweep of the home. Rather, the available facts 

supported only the reasonable inference that no one but TC-D was 

home that afternoon: Appellant was employed on base; no one 

testified that they saw anyone enter or exit the home during a 

period of surveillance of at least one hour prior to the 

delivery of the package; no one answered the door prior to TCD’s arrival, id.; and an eight-pound package containing a 

valuable, illicit substance was left outside for an hour. And 

during the motions hearing, Inspector Lamp in fact testified to 

his own inference from these facts that “nobody was home.” In 

this context, lack of knowledge of the other inhabitants’ 
United States v. Keefauver, No. 15-0029/AR 

17 

whereabouts did not provide an affirmative basis for conducting 

a protective sweep. See United States v. Colbert, 76 F.3d 773, 

778 (6th Cir. 1996); United States v. Hogan, 38 F.3d 1148, 1150 

(10th Cir. 1994); see also United States v. Delgadillo–

Velasquez, 856 F.2d 1292, 1298 (9th Cir. 1988). 

Given the absence of facts supporting the antecedent belief 

required by the first prong of Buie, that there was another 

person present in the home, 494 U.S. at 334, the second prong of 

Buie, which requires articulable facts supporting the belief 

that the “individual pos[es] a danger to those on the arrest 

scene,” id., necessarily fails. We nonetheless make clear that, 

contrary to the belief of the military judge, the presence or 

suspected presence of drugs without more does not justify a 

sweep, see, e.g., United States v. Watson, 273 F.3d 599, 603 

(5th Cir. 2001), nor does the bare conjecture and bald assertion 

that “guns follow drugs,” without additional facts. See Taylor, 

248 F.3d at 514 (citing United States v. Hatcher, 680 F.2d 438, 

444 (6th Cir. 1982)). To suggest, as the military judge did, 

that the mere presence of drugs justifies a protective sweep of 

the entire home would effectively eviscerate the exception to 

the Fourth Amendment contemplated by Buie, which was based 

entirely on the danger to agents. 494 U.S. at 327, 333-34. We 

decline to create so broad an exception to the Fourth Amendment. 
United States v. Keefauver, No. 15-0029/AR 

18 

The Government nonetheless argued at oral argument that a 

verbally hostile teenager and the odor of marijuana alone 

justified a rational inference both that other people were 

present and that they presented a danger to agents. We cannot 

agree. In light of the other facts suggesting no one else was 

home, TC-D’s adverse reaction to officers’ stated intention to 

search without more did not support a reasonable inference that 

other individuals were present, nor, even if they were, that 

they presented a danger to agents.4

 TC-D was quickly handcuffed 

and removed from the house, and he presented no danger to 

agents. Nor, even were we to consider it, does the lingering 

odor of marijuana smoke, without more, support a belief that 

others were present. 

Most tellingly, even if one credits the notion that a 

hostile teenager and the smell of marijuana could create a 

reasonable inference that others were present under the facts of 

this case, absolutely no facts supported an inference of a 

potential for danger or violence, as has been true in other 

cases in which protective sweeps have been upheld. Agents 

neither knew of nor encountered unsecured pit bulls, Starnes, 

741 F.3d at 806-07; no Lincoln Navigators linkable to known gang 

 

4

 Although TC-D’s statements could have alerted another person to 

the officers’ presence and intent to search, leading to an 

attempt to destroy evidence, the potential destruction of 

evidence is not a justification for a Buie sweep, which is 

permissible only for safety reasons. 494 U.S. at 327. 
United States v. Keefauver, No. 15-0029/AR 

19 

members were parked outside the home, United States v. Tapia, 

610 F.3d 505, 507 (7th Cir. 2010), as amended on denial of 

reh’g, No. 09-1426, 2010 U.S. App. LEXIS 27517, at *1 (7th Cir. 

Aug. 16, 2010); and no recent and unexplained gunfire was likely 

to either alert anyone present and potentially dangerous that 

agents might soon arrive or cause them to otherwise be on alert. 

United States v. Parrott, 450 F. App’x 228, 230 (3d Cir. 2011); 

United States v. Tisdale, 921 F.2d 1095, 1097 (10th Cir. 1990). 

Rather, the inverse is true: Appellant lived on a military 

base, not in a high-crime neighborhood or within a known gang 

war zone, even were such a setting enough to justify this 

exception to the Fourth Amendment, a question on which we 

express no opinion. See generally United States v. Martins, 413 

F.3d 139, 150 (1st Cir. 2005) (holding agents could consider 

area to justify sweep where “the inference of danger was much 

more real and immediate than a generic fear of what might happen 

in a high-crime area”); United States v. Atlas, 94 F.3d 447, 

450-51 (8th Cir. 1996) (upholding a protective sweep in a 

“dangerous neighborhood, one that was high in gang activity” and 

noting “an area’s propensity toward criminal activity is 

something that an officer may consider” along with other factors 

(citation omitted)); United States v. Burrows, 48 F.3d 1011, 

1016 (7th Cir. 1995) (holding that while “[a] protective sweep 

is not justified simply because an area is ‘poor’ or a ‘housing 
United States v. Keefauver, No. 15-0029/AR 

20 

project’” the area may be relevant where it “has been the recent 

scene of other violence or civil strife aimed at law enforcement 

officers” or “there are other articulable reasons for believing 

that . . . the area presents a real threat”); United States v. 

Richards, 937 F.2d 1287, 1291 (7th Cir. 1991) (upholding a 

protective sweep of an apartment in “one of the most violent and 

dangerous [neighborhoods] in East St. Louis” where the 

reputation of the area was one of several factors). The 

rational inference for agents to make about a home on a military 

base would be of safety, rather than risk. 

The ACCA erred in affirming the holding of the military 

judge with respect to the protective sweep. As our holding 

eliminates the basis on which the ACCA found probable cause 

existed to conduct the MWD search of the house after the sweep, 

any review of the inevitable discovery doctrine must be 

undertaken without respect to the fruits of the sweep. Although 

we did not grant, and thus do not decide, the question of the 

application of the inevitable discovery doctrine to the 

remaining evidence, we stress that “the inevitable discovery 

doctrine cannot rescue evidence obtained via an unlawful search 

simply because probable cause existed to obtain a warrant when 

the government presents no evidence that the police would have 

obtained a warrant.” United States v. Wicks, 73 M.J. 93, 103 

(C.A.A.F. 2014) (internal quotation marks omitted). 
United States v. Keefauver, No. 15-0029/AR 

21 

IV. DECISION 

The decision of the United States Army Court of Criminal 

Appeals is reversed. The record of trial is returned to the 

Judge Advocate General for remand to that court for further 

action consistent with our resolution of the granted issue.