United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3415

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United States of America, * 

* 

Appellee, * 

* Appeal from the United States

v. * District Court for the District 

* of South Dakota.

David D. Waldner, * 

* 

Appellant. * 

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Submitted: March 15, 2005

Filed: October 10, 2005

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Before MURPHY, BYE, and SMITH, Circuit Judges.

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SMITH, Circuit Judge.

David Waldner was sentenced to serve three concurrent six-month terms, a

two-year term of supervised release, and pay a special assessment of $100 for

unlawful possession of a firearm by a prohibited person and for possession of an

unregistered silencer. Pursuant to a conditional plea agreement, Waldner appeals the

denial of his motion to suppress evidence of firearms and statements made to the

police about those firearms. We reverse. 
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I. Background

David Waldner's wife, Karen Waldner, obtained an ex parte temporary

protection order against him. Deputy Sheriff Matt McQuisten and Officer Matt Starr

went to Waldner's house to serve the order. McQuisten believed Karen Waldner was

home when she called the Sheriff's office to request that the protective order be

served. In the petition and affidavit for protection order, Karen Waldner stated that

"[t]his morning [Waldner] choked me with his hands around my neck and said that

he would kill me. He also threatened to kill me with his guns . . . He has guns, and

lately he has been in a very abusive and [agitated] mood-Things will make him mad

for no reason." 

The officers approached Waldner's home and knocked on the front door. They

could see some lights on, including the light of a television. No one answered the

door, so the officers looked in the garage windows and saw a pickup parked within.

The officers then had the police dispatcher call the house. The officers heard the

telephone ring and the answering machine pick up, but no one answered the

telephone. 

The officers walked to the back of the house where they could still see lights

on inside. They also saw that a door leading into the attached garage was open. The

officers entered the garage through the door and mounted a few steps to a small

platform beside a door leading directly into the house. They knocked on this door, but

no one answered. As the officers started to walk away, they heard a dog bark and then

Waldner came to the door. The officers introduced themselves and explained why

they were there, advising Waldner that he had to vacate the premises immediately. 

The officers told Waldner that he could go back into the house and gather a few

things, but only if they accompanied him. Waldner consented to allow the officers

inside. At no time was Waldner placed in custody. McQuisten explained that before

Waldner would be permitted to go into a room, one or both of the officers would first
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have to look around that room for weapons or other people. Starr asked Waldner if

there was anyone else in the home or if there were any weapons, and Waldner said

"no." 

Waldner and the officers went into the basement. Starr went down the stairs

first. Waldner indicated that he wanted to go into a room to the right side of the stairs

to gather clothes. McQuisten looked for weapons or people, and, seeing neither,

permitted Waldner into the room. Starr did not enter this room. Instead, he remained

in the common area of the basement standing five to ten feet from McQuisten. 

When Waldner had finished gathering clothes, he went into the open area of

the basement. The officers' and Waldner's testimony diverge at this point. McQuisten

testified that he believed Waldner "indicated" an intent to enter the office when he

walked toward "that area." McQuisten also testified that he and Waldner were about

five to ten feet away from the office. McQuisten indicated that Starr decided to

"sweep" the office because it was in the "vicinity." Conversely, Waldner indicated

that Starr walked into the basement office, which was fifteen to twenty feet away

from where he was standing and talking to McQuisten. Waldner insisted that he gave

no indication that he wanted to go into the office. 

When Starr entered the office, he immediately saw a wooden gun cabinet with

a glass front. Inside the cabinet Starr saw a rifle with an attached silencer, and he

alerted McQuisten. Starr suspected that the silencer was illegal. Starr first confirmed

with McQuisten that Waldner had stated there were no firearms in the house. Then,

Starr asked Waldner if he owned the gun and where he got it. Waldner stated that he

found it on a job site, brought it home, and put it in the cabinet. Starr seized the rifle.

Waldner then told the officers that he owned other firearms but that these guns were

not on the premises. Waldner was indicted on two counts of unlawful possession of

a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2),
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and one count of possessing an unregistered firearm silencer in violation of 26 U.S.C.

§§ 5861(d) and 5871.

Waldner pled not guilty, and he later filed a motion to suppress the firearms

and the statements made to the police about those firearms. At a suppression hearing,

the magistrate recommended denial of Waldner's motion. Waldner filed objections,

and the district court entered an order adopting the magistrate's report and

recommendation denying Waldner's motion. 

Waldner entered a conditional plea of guilty, reserving his right to appeal the

denial of his motion to suppress. The district court accepted Waldner's plea and

sentenced Waldner to six months' imprisonment on each count to be served

concurrently, a concurrent two-year term of supervised release on each count, and a

special assessment of $100 per count.

II. Discussion

Waldner argues that Starr went on a "frolic of his own" and entered the office

area of the basement, observing the rifle and silencer. Consequently, Waldner

contends that a protective sweep under Maryland v. Buie, 494 U.S. 325, 327 (1990),

was unjustified. We review the district court's conclusion that a protective sweep was

justified de novo. United States v. Cash, 378 F.3d 745, 747 (8th Cir. 2004) (citing

United States v. Boyd, 180 F.3d 967, 975 (8th Cir. 1999)). We hold that the entry into

the office was unjustified. 

In Buie the Supreme Court established a two-prong test for determining

whether a protective sweep incident to an arrest was constitutionally permissible.

First, the Buie Court held "as an incident to the arrest the officers could, as a

precautionary matter and without probable cause or reasonable suspicion, look in

closets and other spaces immediately adjoining the place of arrest from which an

attack could be immediately launched." 494 U.S. at 334. Second, the Court permitted
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a broader sweep "when the searching officer possesses 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." Id. at 337. In either circumstance, a protective

sweep "is not a full search of the premises, but may extend only to a cursory

inspection of those spaces where a person may be found. The sweep lasts no longer

than is necessary to dispel the reasonable suspicion of danger. . . ." Id. at 335–36.

Buie authorizes protective sweeps for unknown individuals in a house who may

pose a threat to officers as they effectuate an arrest; Buie does not allow a protective

sweep for weapons or contraband. See United States v. Noushfar, 78 F.3d 1442, 1448

(9th Cir. 1996); United States v. Blue, 78 F.3d 56, 60–61 (2d Cir. 1996); United

States v. Ford, 56 F.3d 265, 270 (D.C. Cir. 1995); United States v. Mains, 33 F.3d

1222, 1227 (10th Cir. 1994). 

The officers conducted the search incident to service of a protective order—a

non-arrest situation. Other circuits have applied Buie to non-arrest situations but only

under the second prong of Buie, which requires a showing of a reasonable suspicion

of dangerous individuals in the house. See United States v. Gould, 364 F.3d 578, 584

(5th Cir. 2004) (en banc); United States v. Taylor, 248 F.3d 506, 513–14 (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); United States v. Daoust, 916 F.2d

757, 758–59 (1st Cir. 1990). We decline the government's invitation to extend Buie

further. 

Although McQuisten and Starr had knowledge, based upon Karen Waldner's

affidavit, that Waldner might possess weapons, there is no evidence that the officers

had any articulable facts that an unknown individual might be in the office, or

anywhere else in the house, ready to launch an attack. Starr entered the room based

upon his belief that Waldner might go there to get a firearm. Waldner was five to ten

feet from the room when Starr entered the office. Furthermore, Starr stood between
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Waldner and the office, which would have required Waldner to pass Starr in order to

access the office. Under these circumstances, we hold that the protective sweep

exceeded its permissible scope under the Fourth Amendment.

III. Conclusion

For the foregoing reasons, we reverse the decision of the district court denying

Waldner's motion to suppress. Because we have held that Starr was not lawfully

present in the office, we need not address Waldner's argument that the plain view

doctrine should not apply because it was not immediately apparent that the silencer

was illegal. Similarly, we do not address Waldner's unpreserved argument that the

initial entry into his garage violated the Fourth Amendment because we have held that

Waldner's Fourth Amendment rights were violated when Starr entered the office.

MURPHY, Circuit Judge, concurring in the judgment. 

The court appropriately decides this case on the factual record made in the

district court, which did not establish that the safety of the two officers was

threatened given their locations in the basement and the ambiguity in their testimony

about whether Waldner was headed into the basement office. This does not mean that

Buie would always foreclose a protective sweep when officers are serving a

protective order, however. There is a good deal of evidence that serving domestic

protection orders can be as dangerous for law enforcement officers as making arrests.

As the court pointed out in United States v. Miller, 306 F.Supp.2d 414, 417

(S.D.N.Y. 2004), such situations are "fraught with the potential for ambush and

violence." Here, Deputy McQuisten had reviewed Karen Waldner's petition which

averred that Waldner had choked her and "threatened to kill [her] with his guns," and

the officers had reason to suspect when they went to the house that they could

experience a dangerous encounter. Nevertheless, Waldner was apparently under their

control when Officer Starr decided to enter the basement office, where he discovered
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the weapon, and Starr himself testified at the suppression hearing that he could not

recall whether or not Waldner had shown an intent to go there. In the proper

circumstances, law enforcement officers should be able to do a protective sweep of

their immediate surroundings incident to processing the service of a protective order

in order to ensure their own safety or that of anyone else present. 

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