# United States Court **of Appeals**  **f or 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 l evel. We **AFFIRM** the judgment

.

* Purs uant to **5th Circuit Rule** 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Circuit Rule** 47.5.4.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 Case: 21-30450 Document: 00516397995 Page: 1 Date Filed: 07/18/2022No. 21

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2 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. Th at 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

. . . i n 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.” T he tip did not provide enough evidence to obtain a search warrant , b ut officers
determined that Thurman’s was “a known felon [] ” with a lengthy criminal history.

With that kn owledge, 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 arri ving , t hey 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. Thurm an nervously denied possessing a gun. Although he denied that it was “his” apartment, Thurman admitted he “frequented” it. Thurman gave police the lessee’s Case: 21-30450 Document: 00516397995 Page: 2 Date Filed: 07/18/2022No. 21

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3 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 t here [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 Snowberge r 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
be drooms

. 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 an y 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 lookin g 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, P assman was not involved with obtaining the later

- issued search warrant. Case: 21-30450 Document: 00516397995 Page: 3 Date Filed: 07/18/2022No. 21

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4 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 r ifle[.]” But it only dedicated one sentence to describing what officers
saw inside. The application further explain ed 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 after ward an d lasted only 20 minutes. Officers recovered : a sandwic h 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. T he magistrate judge recommended denying the motion

. In doing so, she determined that the protective sweep s

w ere invalid but that offic ers would have obtained a warrant anyway based on the independent

- source exception to the exclusionary rule

. Both parties filed object ions . The district court adopted most of the magistrate judge’s findings but denied suppression because the protective s weeps were constitutionally valid. Thurman entered a conditional guilty plea while reserving the right to appeal the denial of his motion to suppress.

3 T he 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 De cember 2018 residential burglary in Baton Rouge. Case: 21-30450 Document: 00516397995 Page: 4 Date Filed: 07/18/2022No. 21

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5 The Presentence Investigation Report (“PSR”) assessed a base
offense level of 26 pursuant to United Stat es Sentencing Guidelines ( “USSG”) § 2K2.1(a)(1) because Thurman had two prior felony convictions
for controlled substance offenses. With a total offense level of 2 6 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 th e objection at sentencing and adopted the PSR. The cou rt then sentenced Thurman to 120 months of imprisonment and three years of supervised release. Thurman timely appeal ed

. II. D ISCUSSION

“ 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). Fi ndings of sufficient danger justify ing 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, “ f acts 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 t he 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. Case: 21-30450 Document: 00516397995 Page: 5 Date Filed: 07/18/2022No. 21

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6 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 swee ps, 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 exige nt 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. A nd, Thurman insists, officers would not have waited three minutes to conduct the sweep if they truly perceived danger.

5 The magistrate judge evaluated considerations this 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 exceptio ns 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 supporte d 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). Case: 21-30450 Document: 00516397995 Page: 6 Date Filed: 07/18/2022No. 21

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7 This court assesses the validity of protective sweep s 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 w ere 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 ) (c itation 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). Case: 21-30450 Document: 00516397995 Page: 7 Date Filed: 07/18/2022No. 21

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8 With r espect 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 f our other charges for allegedly beating women on various occasions. And , as explained below, the officers reasonably suspect ed that another person may have been hiding in the unit.
V iewing th at 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[]” be sides Thurman was in side , 6 a nd

a woman and child remained in the apartment after Thurman initially exit ed.
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 , t his 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 , v iewing these facts in the light most
favorable to the government, the initial and secondar y sweeps w ere

6 T he 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 commen t, 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 (5 th 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”). Case: 21-30450 Document: 00516397995 Page: 8 Date Filed: 07/18/2022No. 21

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9 supported by a reasonable, articulable suspicion that unit 74 harbored an
individual potentially posing a da nger 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 tha t 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
reasonablene ss of a protective sweep. Florida v. Jardines , 569 U.S. 1, 10,

133 S. Ct. 1409, 1417 (2013)

. But Thurman ignore s Passman’s conduct during the sweep s . For example, Passman drew his gun a nd announced his

presence a s he entered the unit to conduct the firs t sweep. If Passman w as truly unconcerned for his safety, such measures would have been

unnecessary. Further, Passman moved quickly and left the apartment quickly. D uring 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 fact s 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 p rincipal ly 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. O fficers here reasonably suspected the presence of a firearm even apart from Thurman’s history in the drug trade.

8 E ven assuming arguendo that Passman was not concerned for his safety, 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. Case: 21-30450 Document: 00516397995 Page: 9 Date Filed: 07/18/2022No. 21

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10 R especting 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 afte r 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). Th e much more limited sweeps here amount ed to no more than cursory inspection s of spaces where a person may have been found.

T he fourth consideration , relating to the time consumed by the sweeps, plainly cuts against suppression. Video evidence proves these

s weep s 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 in itial and se condar y protective sweeps

were constitutionally reasonable

.

II

. Even if the sweeps were invalid, t he 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 Case: 21-30450 Document: 00516397995 Page: 10 Date Filed: 07/18/2022No. 21

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11 show that the marijuana formed an independent basis for entering the apartment, unconnected to the unlawful search.”

T he 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, 23 8 , 136 S. Ct. 2056, 2061 (2016) (citation omitted)

. To
determine whether l aw ful 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 affecte d 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 w arrant 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 s weep and only mentioned contraband observed in plain view

. S imilar 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 he re 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[.]” T he 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. ” T his Case: 21-30450 Document: 00516397995 Page: 11 Date Filed: 07/18/2022No. 21

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12 finding is therefore heavily weighted in the government’s favor. See Michalik , 5 F.4th at 588 (citation omitted ). Further, “[d] i stinctive 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 sweep s , the
search warrant ’s reference to the smell of marijuana emitting from the unit supported probable cause

. See Hassan , 83 F.3d at 697.

T he 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 magi strate 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

governmen t satisfied the second consideration. 9

Passman ’s post

- sweep remarks and testimony in isolation could suggest that the sweeps motivate d him to procure a search warrant

. For exampl e, 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 ori ginal). Case: 21-30450 Document: 00516397995 Page: 12 Date Filed: 07/18/2022No. 21

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13 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 applicati on 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. W e 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)

. T he 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 i n 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

. Case: 21-30450 Document: 00516397995 Page: 13 Date Filed: 07/18/2022No. 21

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14 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 (5 th Cir. 2009)(citations omitted). Case: 21-30450 Document: 00516397995 Page: 14 Date Filed: 07/18/2022