United States Court of Appeals

for the Fifth Circuit

No. 21-30450

United States of America, 

Plaintiff—Appellee,

versus

Eugene Thurman, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:19-CR-398-1

Before Jones, Stewart, and Duncan, Circuit Judges.

Per Curiam:*

Eugene Thurman argues that the district court erred by 1) denying his 

motion to suppress based on the protective-sweep exception to the Fourth 

Amendment and the independent-source exception to the exclusionary rule, 

and 2) miscalculating his base offense level. We AFFIRM the judgment.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 18, 2022

Lyle W. Cayce

Clerk

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I. BACKGROUND

The Monroe, Louisiana Police Department (“MPD”) received a call 

on May 11, 2019 that someone with a “an AR rifle, or AR styled rifle, [or] 

long gun” was firing rounds outside the Parkview Apartments. That 

complex is located in an extremely high-crime area. Officers could not find

the shooter or the weapon, but they found 17 spent .223 caliber rifle rounds

in the parking lot and heard 15 shots while there.

Two days later, MPD received an anonymous tip that “Eugene 

Thurman [was] a felon . . . in possession of an assault rifle.” The tipster

further conveyed that Thurman was a 44-year-old black male who “live[d] 

[in unit 74] at Parkview Apartments with his girlfriend and her two children

[and that he was] known to carry the weapon in a red bag with him.” The tip 

did not provide enough evidence to obtain a search warrant, but officers 

determined that Thurman’s was “a known felon[]” with a lengthy criminal 

history.

With that knowledge, Lieutenant Triche Passman, Corporal James 

Schmitz, Detective Doug Lambert, and Detective Snowberger, along with at 

least two other officers, went to the Parkview Apartments later on May 13th 

to conduct a “knock and talk.” Upon arriving, they found three children 

playing outside unit 74, and one said that Thurman was inside with 

“somebody” before going to retrieve him. Thurman emerged about 20 

seconds later and stood right outside of the unit with the door still ajar. 

Lambert detected an odor of marijuana wafting from the apartment. The 

encounter was recorded on police bodycams. For seven to eight minutes, 

police spoke to Thurman outside the apartment. During that time, a child 

entered the unit and then exited along with a woman. Thurman nervously 

denied possessing a gun. Although he denied that it was “his” apartment, 

Thurman admitted he “frequented” it. Thurman gave police the lessee’s 

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name, and they attempted, without success, to contact her for permission to 

search the apartment. Thurman refused to approve a warrantless search.

Alarmed by Thurman’s nervousness, evasive answers, and the 

possibility that others remained in the apartment, Passman announced that 

he was going to “clear the unit”1 and Lambert told him to “[m]ake sure there

[was] nobody else in there.” Passman and Snowberger then entered the unit 

with their guns drawn and the former yelled “Monroe Police, anybody else 

in here?” Lambert and Schmitz remained outside. Within 30 seconds 

Passman observed “an AK-47 assault rifle propped up against a wall in the 

far corner of the back bedroom, a baggie of marijuana on the night table, and 

digital scales.”2

 He then emerged from the hallway and instructed the 

officers outside to handcuff Thurman.

Passman and Snowberger returned to the doorway, but they had not 

yet determined that no one else was inside, so Lambert followed them to 

conduct a secondary sweep. Passman re-drew his sidearm and, within 

approximately 30 seconds, the officers searched the bathroom and both 

bedrooms. All three officers then exited the unit. The initial and secondary 

protective sweeps lasted only approximately one minute combined.

Lambert submitted a search warrant application that “requested to 

enter 1101 Richwood Road 2 Apt. 74 to collect any and all illegal drugs and 

weapons found inside the residence.” The application stated, in relevant 

1 Passman was also prompted to conduct the sweep based on Thurman’s alleged 

possession of a gun, especially in light of the prior shootings at the complex. He was 

unaware of the marijuana odor at that time.

2 Though that was “not the gun [they] were looking for[,]” Passman determined 

at that point that there was sufficient ground to seek a search warrant because the gun they 

were seeking could have been somewhere else. Thurman later uses that to link the sweeps 

with the warrant. Yet, as explained below, Passman was not involved with obtaining the 

later-issued search warrant.

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part, that “a protective sweep of the apartment was performed[]” “[d]ue to 

the chance of someone else being in the apartment and them being armed 

with a rifle[.]” But it only dedicated one sentence to describing what officers 

saw inside. The application further explained that officers had been unable 

to contact the lessee. And it critically maintained that “an odor of marijuana 

was detected coming from the apartment.” A state court judge signed the 

warrant that same afternoon. The search commenced shortly afterward and 

lasted only 20 minutes. Officers recovered: a sandwich bag containing 

suspected marijuana, a digital scale, Thurman’s ID card, an AK-47 Century 

International Model M70 AB2,3 an AK-47 magazine containing 11 7.62 X 39 

rounds, an empty Glock 40 magazine, and a brown leather case containing 

several 30-06 rounds.

A grand jury indicted Thurman in December 2019 as a felon

possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Thurman pled not 

guilty and later moved to suppress all of the seized items. The magistrate 

judge held a hearing that featured 32 exhibits along with testimony from 

Passman, Schmitz, and Lambert. The magistrate judge recommended 

denying the motion. In doing so, she determined that the protective sweeps

were invalid but that officers would have obtained a warrant anyway based on

the independent-source exception to the exclusionary rule. Both parties filed 

objections. The district court adopted most of the magistrate judge’s

findings but denied suppression because the protective sweeps were

constitutionally valid. Thurman entered a conditional guilty plea while

reserving the right to appeal the denial of his motion to suppress.

3 The AK-47 was manufactured in Minnesota and therefore traveled in interstate 

commerce to reach Louisiana. A weapons trace later verified that the firearm had been 

stolen during a December 2018 residential burglary in Baton Rouge.

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The Presentence Investigation Report (“PSR”) assessed a base 

offense level of 26 pursuant to United States Sentencing Guidelines 

(“USSG”) § 2K2.1(a)(1) because Thurman had two prior felony convictions 

for controlled substance offenses. With a total offense level of 26 and a 

criminal history category of V,4 Thurman faced 100 to 125 months of 

imprisonment under the guidelines, but the statutory maximum was 10 years. 

Thurman objected, arguing that his drug conspiracy conviction was not a 

controlled substance offense. The court overruled the objection at 

sentencing and adopted the PSR. The court then sentenced Thurman to 120 

months of imprisonment and three years of supervised release. Thurman 

timely appealed.

II. DISCUSSION

“When reviewing a denial of a motion to suppress evidence, [this 

court] review[s] the district court’s factual findings for clear error and its 

legal conclusions, including the ultimate constitutionality of the actions of 

law enforcement, de novo.” United States v. Meals, 21 F.4th 903, 906 (5th Cir. 

2021) (citation omitted) (alterations in original). Findings of sufficient 

danger justifying a protective sweep are, for example, reviewed for clear 

error. United States v. Watson, 273 F.3d 599, 603 (5th Cir. 2001) (citation 

omitted). Moreover, “facts underlying the suppression determination are 

reviewed in the light most favorable to the prevailing party, which in this case 

is the Government.” Meals, 21 F.4th at 906 (citation omitted). And the 

court may generally “affirm the district court’s ruling on a motion to 

suppress based on any rationale supported by the record.” United States v. 

Wise, 877 F.3d 209, 215 (5th Cir. 2017) (internal quotation marks and citation 

4 Thurman’s base offense level was increased by two points pursuant to 

USSG § 2K2.1(b)(4) because the firearm was stolen. But he received a three-point 

reduction under USSG § 3E1.1(a) and (b) for accepting responsibility.

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omitted). “Our review is particularly deferential where denial of the 

suppression motion is based on live oral testimony because the judge had the 

opportunity to observe the demeanor of the witnesses.” United States v. 

Michalik, 5 F.4th 583, 588 (5th Cir. 2021) (citation omitted).

We address in order Thurman’s challenge to the protective sweeps, 

the applicability of the independent-source exception, and whether the 

district court properly calculated Thurman’s base offense level.

A.

I.

The district court ruled that “[t]he protective sweep conducted in 

Parkview Apartment No. 74 [was] constitutionally valid[]” based on the 

anonymous tip regarding the gun and the officers’ articulated concerns about 

someone remaining inside.5

 Thurman contends that “no exigent 

circumstances compel[ed] the entry into [his] residence for a protective 

sweep[]” and reasons that the court should have suppressed the evidence 

seized as a result of the search. He specifically emphasizes that nothing 

suggested anyone else was inside, as evidenced by Passman’s decision to turn 

his back to the unit’s interior. And, Thurman insists, officers would not have 

waited three minutes to conduct the sweep if they truly perceived danger.

5 The magistrate judge evaluated considerationsthis court has held pertinent to the 

protective-sweep exception. The district court, in contrast, assessed considerations related 

to the exigent-circumstances exception. But the two exceptions are analytically distinct. 

Compare Maryland v. Buie, 494 U.S. 325, 334 110 S. Ct. 1093, 1098 (1990), with Kirk v. 

Louisiana, 536 U.S. 635, 638, 122 S. Ct. 2458, 2459 (2002) (per curiam). We may 

nonetheless “affirm . . . based on any rationale supported by the record” and will therefore 

evaluate the sweeps based on considerations identified by the magistrate judge. Wise, 

877 F.3d at 215 (5th Cir. 2017) (internal quotation marks and citation omitted).

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This court assesses the validity of protective sweeps by evaluating 

whether:

o First, the officers had a legitimate law enforcement purpose 

for entering the dwelling;

o Second, the sweep was supported by a reasonable, 

articulable suspicion that the area to be swept harbored an 

individual posing a danger to those on the scene;

o Third, the sweep was no more than a cursory inspection of 

those spaces where a person may have been found; and

o Fourth, the sweep lasted no longer than was necessary to 

dispel the reasonable suspicion of danger and no longer than 

the police were justified in remaining on the premises.

United States v. Mendez, 431 F.3d 420, 428 (5th Cir. 2005) (citing United 

States v. Gould, 364 F.3d 578, 587 (5th Cir. 2004) (en banc), cert. denied

543 U.S. 955, 125 S. Ct. 437 (2004), abrogated in part on other grounds by 

Kentucky v. King, 563 U.S. 452, 461-70, 131 S. Ct. 1849, 1857-62 (2011). In 

doing so, “we consider the totality of the circumstances surrounding the 

officers’ actions.” United States v. Silva, 865 F.3d 238, 241 (5th Cir. 2017) 

(per curiam) (citation omitted). “If reasonable minds could differ on the 

whether the sweep was warranted, we do not second-guess the judgment of 

experienced law enforcement officers concerning the risks in a particular 

situation.” Id. at 242 (citation omitted).

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With respect to the first consideration, officers suspected that 

Thurman had an “assault rifle[,]” which could have fired the numerous .223 

rounds in the nearby parking lot two days earlier. They had also examined 

Thurman’s background, which includes four drug-related convictions, one 

conviction for fleeing arrest, and at least four other charges for allegedly 

beating women on various occasions. And, as explained below, the officers 

reasonably suspected that another person may have been hiding in the unit. 

Viewing that evidence in the light most favorable to the government, officers 

had a legitimate law enforcement purpose for entering the unit.

Regarding the second consideration, a child told Schmitz, as officers 

approached the unit, that “somebody[]” besides Thurman was inside,6 and 

a woman and child remained in the apartment after Thurman initially exited. 

It was therefore reasonable to suspect that someone else could be inside, and 

that person could have foreseeably gotten hold of the suspected firearm. 

Even if these suspicions were tentative, this court has “upheld the validity of 

[a] protective sweep on the officers’ belief even though the factual basis for 

the belief was disputable.” United States v. Wilson, 306 F.3d 231, 238 (5th 

Cir. 2002) (citation omitted). Again, viewing these facts in the light most 

favorable to the government, the initial and secondary sweeps were

6 The officers here did not hear noises or see movements suggesting that someone 

was inside. Cf. United States v. Ibarra-Zelaya, 465 F.3d 596, 605 (5th Cir. 2006); United 

States v. Maldonado, 472 F.3d 388, 393-94 (5th Cir. 2006). But from the child’s comment,

they had no way of knowing whether the child spoke of anyone else besides the woman. 

And this court has upheld protective sweeps based on reports that a person and a firearm 

were present in a residence. See United States v. Riley, 968 F.2d 422, 424 (5th Cir. 1992) 

(determining that a warrantless entry was not unreasonable where an accomplice told 

officers that “there was a large sum of money, a handgun, and another individual at the 

residence he had just left”).

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supported by a reasonable, articulable suspicion that unit 74 harbored an 

individual potentially posing a danger to officers on the scene.7

Disagreeing, Thurman emphasizes that Passman “blocked any entry 

into the apartment as he stood at the apartment’s entryway with his back to 

the apartment’s interior . . . [,]” and that he did so “for a large part of the 

time that [officers] stood talking with [him].” To be sure, an officer’s 

“behavior [can] objectively reveal[] a purpose to conduct a search,” which 

logically means that such behavior can also support or undermine the 

reasonableness of a protective sweep. Florida v. Jardines, 569 U.S. 1, 10, 

133 S. Ct. 1409, 1417 (2013). But Thurman ignores Passman’s conduct 

during the sweeps. For example, Passman drew his gun and announced his 

presence as he entered the unit to conduct the first sweep. If Passman was

truly unconcerned for his safety, such measures would have been 

unnecessary. Further, Passman moved quickly and left the apartment 

quickly. During the secondary sweep, Passman again drew his sidearm and 

had two other officers providing backup. These actions were limited to 

measures appropriate to the protection of officer safety rather than an 

investigation for incriminating evidence. They dispel any inference that an 

unreasonable search was occurring.

8

7 Thurman attempts to analogize the facts here to those present in United States v. 

Menchaca-Castruita, 587 F.3d 283 (5th Cir. 2009) and United States v. Carter, 360 F.3d 1235 

(10th Cir. 2004), where the respective courts held protective sweeps to have been invalid. 

But both of those decisions involved protective sweeps based principally on the presence 

of suspected drugs; neither involved suspicion of firearms based on anything other than 

officers’ general association of guns with drug dealing. Menchaca-Castruita, 587 F.3d at 

287; Carter, 360 F.3d at 1238. Officers here reasonably suspected the presence of a firearm 

even apart from Thurman’s history in the drug trade.

8 Even assuming arguendo that Passman was not concerned for hissafety, such lack 

of concern cannot be imputed to other officers. Snowberger, for example, also entered the 

unit with his gun drawn, illustrating his own concerns.

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Respecting the third consideration, “the area in front of the bed where 

the gun was seen appeared to be wide enough space for someone to have 

crouched down to avoid detection.” And “it took the officers only a little 

over 30 seconds to find the weapon after the search began.” Moreover, 

Passman “observed the baggie of marijuana in plain view on the 

nightstand[]” at approximately the same time as he saw the gun. This court 

has upheld the validity of protective sweeps under mattresses as police 

searched for persons potentially hiding in hollowed-out spaces. See Silva, 

865 F.3d at 243; United States v. Garcia-Lopez, 809 F.3d 834, 839 (5th Cir. 

2016). The much more limited sweeps here amounted to no more than 

cursory inspections of spaces where a person may have been found.

The fourth consideration, relating to the time consumed by the 

sweeps, plainly cuts against suppression. Video evidence proves these 

sweeps lasted no longer than one minute, i.e., no longer than necessary to 

dispel the reasonable suspicion of danger posed by another person and no 

longer than the police were justified in remaining on the premises.

Based on the totality of the circumstances viewed in the light most 

favorable to the government, the initial and secondary protective sweeps

were constitutionally reasonable.

II.

Even if the sweeps were invalid, the district court (and the magistrate 

judge) determined that, once Lambert perceived the odor of marijuana, “all 

of the evidence sought to be suppressed would have been discovered 

pursuant to an independent source[] sufficient to withstand exclusion of the 

evidence . . . .” Thurman, however, contends that the marijuana odor could 

have blown in from another apartment. He also argues that “[t]he unlawful 

sweep of [his] apartment unquestionably motivated the officers’ decision to 

procure a warrant[,]” and given that connection, “the [g]overnment failed to 

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show that the marijuana formed an independent basis for entering the 

apartment, unconnected to the unlawful search.”

The independent source exception to the exclusionary rule “allows 

trial courts to admit evidence obtained in an unlawful search if officers 

independently acquired it from a separate, independent source.” Utah v. 

Strieff, 579 U.S. 232, 238, 136 S. Ct. 2056, 2061 (2016) (citation omitted). To 

determine whether lawful searches and seizures are genuinely independent 

of earlier tainted ones, we must assess whether “the expurgated warrant 

affidavit provided probable cause for the issuance of the warrant by the 

magistrate judge[]” and “whether the illegal search affected or motivated the 

officers’ decision to procure the search warrant.” United States v. Restrepo, 

966 F.2d 964, 966 (5th Cir. 1992), cert. denied, 506 U.S. 1049, 113 S. Ct. 968 

(1993) (citing Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529 (1987)

(emphasis in original)). We review determinations respecting the first 

consideration de novo and those regarding the second for clear error. United 

States v. Hassan, 83 F.3d 693, 697 (5th Cir. 1996).

Regarding the first consideration, the search warrant contained 

sufficient information to justify a search without reference to anything seen 

during the protective sweeps. In fact, Lambert’s search warrant affidavit

included only a single sentence referring to anything observed during the 

protective sweep and only mentioned contraband observed in plain view. 

Similar affidavits have provided probable cause where officers had 

independent evidence of suspected drug activity. See United States v. Hearn, 

563 F.3d 95, 102 (5th Cir. 2009). The affidavit here also stated that “[w]hile 

speaking with [Thurman,] an odor of marijuana was detected coming from 

the apartment.” Lambert later testified that he could “smell it from the 

moment [officers] walked up to the front door[.]” The district court 

“accept[ed] the veracity of Lambert’s testimony made under oath at the 

hearing, which he also made under oath before the state court judge.” This 

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finding is therefore heavily weighted in the government’s favor. See Michalik, 

5 F.4th at 588 (citation omitted). Further, “[d]istinctive odors, detected by 

those qualified to know them, may alone establish probable cause.” United 

States v. McKeever, 906 F.2d 129, 132 (5th Cir. 1990) (collecting cases). 

Thus, excluding the single sentence related to the protective sweeps, the 

search warrant’s reference to the smell of marijuana emitting from the unit 

supported probable cause. See Hassan, 83 F.3d at 697.

The more subjective second consideration about the officers’ 

motivation concerns “the precise nature of the information acquired during 

the illegal search” and “the relative probative import of this information 

compared to all other information known to the officers.” Restrepo, 966 F.2d 

at 972. Neither the district court nor the magistrate judge made express 

findings regarding whether the officers were motivated to obtain the search 

warrant based on evidence observed during the protective sweeps. The 

district court did, however, adopt the magistrate judge’s finding that the 

government satisfied the second consideration.9

Passman’s post-sweep remarks and testimony in isolation could 

suggest that the sweeps motivated him to procure a search warrant. For 

example, Passman testified that he did not have sufficient grounds to apply 

for a search warrant until “[a]fter the sweep was done and the items—the

marijuana, and the rifle were seen.” But he took no action to obtain a 

warrant. On the contrary, he remained on scene and finally authorized 

Schmitz to procure a warrant.

9 “Even where the district court has not made any factual findings, we have 

independently review[ed] the record to determine whether the district court’s decision is 

supported by any reasonable review of the evidence.” United States v. Mendez, 885 F.3d 

899, 910 (5th Cir. 2018) (internal quotation marks and citations omitted) (alteration in 

original).

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Schmitz was on the phone during the protective sweeps trying to 

contact the apartment lessee. He neither participated in the sweeps nor saw 

any contraband.

10 But Schmitz smelled marijuana at the premises and took 

Lambert along to procure the warrant. Lambert later testified that Schmitz 

largely told him what information to draft in the warrant application.

In sum, the record fairly shows that Schmitz catalyzed the search 

warrant application without ever entering the unit, and Passman’s 

involvement in submitting a warrant application was nil. Finally, the 

application itself focuses on the smell of marijuana, with a mere mention of 

items inside the apartment. We cannot form a definite and firm conviction 

that the district court clearly erred by determining that the government 

satisfied the second consideration. See United States v. Cabrera, 288 F.3d 

163, 168 (5th Cir. 2002) (internal quotation marks and citations omitted). 

The independent source doctrine thus independently would bar application 

of the exclusionary rule.

B.

The PSR assigned Thurman a base offense level of 26 pursuant to 

USSG § 2K2.1(a)(1) because he committed the offense at issue after 

sustaining two felony convictions for controlled substance offenses, one of 

which was a conspiracy offense. Thurman’s complaint about the guidelines 

calculation is that his prior drug conspiracy conviction should not be included 

because it is not a controlled substance offense within § 2K2.1. If that is 

correct, his base offense level was much higher than it should have been. Our 

precedent forecloses this contention. The reasoning behind our precedent is 

developed in United States v. Kendrick, 980 F.3d 432, 444 (5th Cir. 2020), 

10 Passman told Schmitz about the contraband, but it is unclear what role that 

played in his decision making.

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cert. denied, 141 S. Ct. 2866 (2021) (quoting United States v. Lightbourn, 

115 F.3d 291, 293 (5th Cir. 1997)).

11

For the reasons stated above, we AFFIRM the conviction and 

sentence.

11 The district court stated it would have imposed an “identical” sentence even if 

the guidelines range was “incorrect[.]” Thus, any error would be harmless. See United 

States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009)(citations omitted).

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