United States Court of Appeals

Fifth Circuit



## FILED

March 28, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-30629

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

KELLY DONALD GOULD,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Louisiana

Before GARWOOD, SMITH and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

In this felon-in-possession prosecution (18 U.S.C. §

922(g)(1)), the Government ap peals the district court’s grant of

the motion to suppress filed by defendant-appellee Kelly Donald

Gould (Gould). We affirm.

Facts and Proceedings Below

On October 17, 2000, the Livingston Parish Sheriff's Office

(LPSO) wa s contacted by John Forehand, an employee of Gould.2

Forehand asserted that Gould intended t o kill two judges and

unidentified police officers and to destroy telephone company

t ransformers. The LPSO contacted the East Baton Rouge Parish

Sheriff's Office (EBRSO) and informed it of Forehand's complaint.

Sgt. Karl Kretser of the EBRSO performed a criminal history check

and determined that Gould had been arrested numerous times for

violent felonies and resisting police officers and “that he was a

convicted felon for violent charges.” Kretser's superiors also

informed him that several days earlier Gould had made threatening

remarks to someone, apparently in response to the unfavorable

result of a court proceeding.

Kretser met with LPSO Detectives Jim Brown and Jason Ard to

discuss the situation and then question the defenda nt. They

knocked on the front door of the trailer home where he lived, which

was answered by Dennis Cabral, who also lived in the trailer home.

Forehand was also inside the home. The officers asked to speak to

Gould, and Cabral told them he was probably asleep. The officers

asked if they could look inside for the defendant, and Cabral

agreed, pointing in the direction of Gould's bedroom.

Ard asked Cabral to go outside with him and Forehand, who had

already stepped outside, citing safety reasons. Brown and Kretser

entered the home and looked for the defendant. They testified that

they believed that a search was necessary to ensure officer safety

given Forehand's allegations and Gould's criminal his tory. The1 The district court–without appellate challenge–found that “the officers’ initial entry into

the mobile home was legal, because they had the voluntary consent of a resident. However, Mr.

Cabral had neither actual nor apparent authority to consent to the search of the master bedroom.”

We do not interpret the district court’s ruling as including a finding that the presence of

the officers, when they initially observed that defendant was not in bed, was in violation of

defendant’s Fourth Amendment rights.

3 door to Gould's bedroom was ajar; and, looking through and seeing

Gould was not in bed, they entered. 1 After not seeing him in the

room, they looked in two closets. They testified that they

considered t he closets potential hiding places. In one closet,

they saw three firearms. They left the firearms in the closet and

continued to search for Gould.

As Brown exited the bedroom, someone yelled that Gould had

gone outside. Brown went out the open back door and found Gould

several minutes later, hiding behind a log in the woods. The

officers handcuffed Gould, advised him of his rights, and escorted

him to a police car. In the police car, the police questioned

Gould about the guns. The officers asked for and received Gould's

consent to search th e home, and he signed a written waiver of

search warrant. The officers then searched the home and retrieved

the guns. Gould was arrested for possession of firearms by a

convicted felon.

Gould was indicted for felony possession of a firearm by a

convicted felon under 18 U.S.C. § 922(g)(1). Upon Gould's motion,

the district court suppressed the guns, finding that the search of

the closet, characterized as a protective sweep, violated Gould's2 The court ruled that “Because the ‘protective sweep’ was not conducted as an incident to

arrest, however, the search of the closet in the master bedroom was illegal.”

4 Fourth Amendment rights because it was not incident to an arrest. 2

The Court rejected the government's arguments that United States v.

Wilson, 36 F.3d 1298 (5th Cir. 1994), could be distinguished. The

Government moved for reconsideration, which was denied by the

district court on May 16, 2002.

Discussion

A. Standard of Review

When reviewing a ruling on a motion to suppress, this court

reviews the district court's factual findings for clear error and

its legal conclusions, including its ultimate conclusion as to the

constitutionality of the law enforcement action, de novo. United

States v. Chavez

, 281 F.3d 479, 483 (5th Cir. 2002). This court

views the evidence in the light most favorable to the party that

prevailed in the district court, which in this case was Gould. Id.

Applicability of the good faith exception to the exclusionary rule

is similarly reviewed when it was raised before the district court.

United States v. Cherna , 184 F.3d 403, 406-07 (5th Cir. 1999).

As a panel, we are without authority to overrule the decision

of another panel of this circuit. See United States v. Taylor

, 933

F.2d 307, 313 (5th Cir. 1991). While this panel is not bound by

dicta of a previous panel, Curacao Drydock Co. v. M/V Akritas

, 710

F.2d 204, 206 (5th Cir. 1984), nevertheless in this circuit5

alternative holdings are binding precedent and the presence of an

a lternative holding “does not deprive [a holding] . . . of its

binding precedential force.” Williams v. Cain , 229 F.3d 468, 474

n.5 (5th Cir. 2000).

B. Applicability of Protective Sweep Exception

It is axiomatic that the physical entry of the home is one of

the chief evils again st which the Fourth Amendment is directed.

Welsh v. Wisconsin , 104 S.Ct. 2091 (1984). The Supreme Court has

long held that exclusion of illegally obtained ev idence is

generally required, finding that the exclusionary rule reaches not

only primary evidence obtained as a direct result of an illegal

search or seizure, Weeks v. United States

, 34 S. Ct. 341(1914), but

also evidence later discovered and found to be derivative of an

illegality or "fruit of the poisonous tree." Nardone v. United

States

, 60 S.Ct. 266, 268 (1939). The Government does not dispute

that, if the search violated the Fourth Amendment and is not

subject to a good faith exception, this body of law requires that

the evidence obtained must be excluded.

The Government does not con tend the search here was

permissible under the "hot pursuit" excepti on to the warrant

requirement suggested by the Supreme Court in Warden v. Hayden

, 87

S.C t. 1642 (1967), or under the exigent circumstances exception3 Nor does it argue on appeal the inevitable discovery doctrine recognized in Nix v.

Williams , 104 S.Ct. 2501, 2509 (1984).

6 recognized in Coolidge v. New Hampshire , 91 S.Ct. 2022 (1971). 3

The Government asserts that the items found in the bedroom were in

plain view and seized as a part of a valid "protective sweep" under

Maryland v. Buie , 110 S.Ct. 1093 (1990). Gould counters that the

case is controlled by language in W ilson stating the protective

sweep exception is only applicable when the sweep is incident to

arrest, but the Government m aintains this is dicta and,

furthermore, that the present case is factually distinguishable.

In Wilson

, this court co nsidered a search involving a

defendant who was being investigated for possession of stolen mail.

Wilson

, 36 F.3d at 1301. The officers lacked probable cause to

arrest the defendant, but went to the hotel where the defendant was

believed to be staying in order to question him. Another man, to

whom the roomwas registered, answered the door, invited the

officers in, and told them the defendant was in the bathroom. The

officer instructed the defendant to come out of the bathroom; after

he did so, the officer searched the hotel room, finding a checkbook

in a trash can in the bathroom. Id. The checkbook was stolen, and

the defendant was convicted of possession of stolen mail. Id. at

1301-02.

The Wilson panel concluded that the seizure of the checkbook

was unlawful. Rejecting the government's assertion that the search7

was incident to a protective sweep, this court wrote only a single

paragraph on that issue, as follows:

“ Protective Sweep?

The government argues that the seizure of the checkbook

was lawful because it was discovered during a protective

sweep of the hotel room. A “protective sweep” is a quick

and limited search of a premises, incident to an arrest

and conducted to protect the safety of police officers or

others. It is narrowly confined to a cursory visual

inspection of those places in which a person might be

hiding. Maryland v. Buie , 494 U.S. 325, 327, 110 S.Ct.

1093, 1094, 108 L.Ed.2d 276 (1990). The instant search

of the hotel room was not made as an incident to an

arrest and, therefore, it does not fit within the

‘protective sweep’ exception to the warrant requirement.

Moreover, under the instant circumstances, the seizure of

the checkbook f rom the wastebasket was not within the

narrow ambit of a “cursory visual inspection” of a place

where a person could be hiding. S ee Buie , 494 U.S. at

327, 110 S.Ct. at 1094.” I d

. at 1035-36 (emphasis in

next to last sentence added).

The Government appears to assert that the language in the last

sentence in the ab ove quotation–concerning taking the checkbook

from the wastebasket not being within the “ambit of a ‘cursory

visual inspection’ of a place where a person could be

hiding”–represe nts both a factual scenario distinct from the

present case and is the true holding of Wilson

, the incident to an

arrest language of Wilson’s preceding sentence being dicta.

In any event, it is correct that the rummaging through the

trash can in Wilson did not involve intrusion into a place where a

person could be hiding and was a substantially more probing search

than the cursory peering into the closets in the case sub judice.8

Ho wever, simply because one part of the holding in W ilson may be

inapplicable to the facts of th is case, this panel is not at

liberty to disregard the other language in Wilson that clearly

constitut es a holding, in reference to an issue procedurally and

factually actually before the c ourt in that case, that the

protective sweep exception is only applicable to searches incident

to an arrest. As noted, in this circuit, alternative holdings are

binding precedent. Nor can we reasonably read W ilson as holding

that the protective sweep exception was unavailable simply because

it was not jus tified e ither as being incident to an arrest or as

being confined to a cursory visual inspection of a place where a

person might be hiding. It seems to us that the only fair reading

of Wilson is tha t its holding is expressed in the next to last

sentence of its above quoted “protective sweep” paragraph, as

plainly reflected by the word “therefore” in that sentence. The

next sentence–concerning cursory visual inspection of potential

human hiding places–begins “[m]oreover,” indicating that it states

a separate, additional reason. This entire paragraph of the W ilson

opinion is plainly not written on the assumption that the search

would have been valid if it had met the criteria of either the next

to last or the last sentence of the paragraph.

The Government also seeks to factually distinguish Wilson on

various grounds, arguing that the circumstances in Wilson, unlike

those in the present case, entailed no reasonable suspicion of4 The district court erroneously faulted the “knock and talk” strategy as applied here on the

factually clearly erroneous basis that before the officers went to the trailer home they had been

informed by Forehand that the defendant had firearms there. The court stated in this respect:

“. . . the officers could have obtained a valid search warrant based on the

information provided to them by Mr. Forehand. Mr. Forehand informed the

officers that, while at the mobile home one day, the defendant had retrieved a

twenty-two caliber rifle, equipped with a scope, from his bedroom and showed it

to him. Mr. Forehand also reported that Gould described additional weapons that

he owned. . . . With this information and the officers’ knowledge that the

defendant was a convicted felon, the officers should have obtained a search

warrant for the mobile home and specifically for the master bedroom. Their failure

to obtain a search warrant reduces the weight of the governmental interest in

9 danger, did not involve a search of a place where a person could be

hiding, and involved a seizure that was not in plain view.

However, the language in Wilson can only be read as a broad holding

that, whatever the other facts of a case may be, the protective

sweep exception is only applicable when the search is incident to

an arrest. It would not be appropriate for this panel to rewrite

a pre v ious panel's decision to limit its plain scope. We

therefore agree with Gould that Wilson controls this case.

However, we think that for several reasons that it would be

appro priate for this court to review the present case en banc to

consider whether this circuit should adhere to Wilson’s ipso facto

disallowance of all protective sweeps not incident to an arrest.

First, federal courts have approved of the “knock and talk”

strategy as a reasonable investigative tool when officers seek to

gain an occupant's consent to search or when officers reasonably

suspect criminal activity. United States v. Jones , 239 F.3d 716,

720 (5th Cir.), cert. den ied , 122 S.Ct. 142 (2001). 4 Theconducting a ‘protective sweep’ of the master bedroom, because a ‘protective

sweep’ would have been unnecessary if the search were authorized by a search

warrant.”

However, the undisputed evidence is that Forehand did not say anything about the defendant

having firearms or there being such at the trailer until, after the defendant’s arrest, Forehand was

further questioned at the trailer.

10 Governmen t has a significant interest in investigating credible

c omplaints indicating that individuals such as Gould intend to

commit murder and destroy property. We question whether the “knock

and talk” strategy can be safely carried out in practice if

officers are not allowed to conduct a protective sweep when they

reasonably apprehend danger in order to avoid being ambushed.

Secondly and most importantly, while no Supreme Court case

directly conflicts with thi s court's holding in W ilson, the

touchstone of the Sup reme Court's Fourth Amendment jurisprudence

has been reasonableness. The reasonableness of a search is

determined by assessing, on the one hand, the degree to which it

intrudes upon an individual's privacy and, on the other, the degree

to which it is needed to promote legitimate governmental interests.

United States v. Knights , 122 S.Ct. 587, 591 (2001).

Reasonableness is a much more nuanced standard than the rigid rule

adopted in Wilson

.

Indeed, this court in Wilson did not employ a reasonableness

test, but instead relied on the Court's opening statement in Buie

that “a protective sweep is a quick and limited search of premises,

incident to an arrest and conducted to protect the safety of police11

officers or others.” However, the sweep in Buie was indisputably

incident to an arrest so the question of whether there could ever

exist conditions that would justify a protective sweep not incident

to an arrest was not before the Court. As such, this opening

sentence in Buie might properly be regarded as doing no more than

describing the issue then before the Supreme Court. C f

. Knights at

590 (noting that it is “dubious logic” to suggest that “an opinion

upholding the constitutionality of a particular search implicitly

holds unconstitutional any search that is not like it”).

This conclusion is strengthened by Terry where the Court

upheld a stop and frisk search of a pedestrian despite agreeing

with the factual finding of the lower court that the search was not

incident to the arrest because, before the weapons and other

evidence of the search was uncovered, the officers neither had

probable cause to arrest the individual or intended to do so. Terry

v. Ohio

, 88 S.Ct. 1868, 1883 (1968 ). T he Court concluded , “Our

evaluation of the proper balance that has to be struck in this type

of case leads us to conclude that there must be a narrowly drawn

authority to permit a reasonable search for weapons for the

protection of the police officer, where he has reason to believe

that he is dealing with an armed and dangerous individual,

r egardless of whether he has probable cause to arre st the

individual for a crime.” I d. T he Court contrast ed the limited

type of search it approved in Terry with a more far-reaching5 We note that Knights involved a search of the defendant’s apartment.

12 traditional search:

“The protective search for weapons, on the other hand,

constitutes a brief, though far from inconsiderable,

intrusion upon the sanctity o f the person. It does not

follow that be cause an officer may lawfully arrest a

person only when he is appr ised of facts sufficient to

warrant a belief that the person has committed or is

committing a crime, the officer is equally unjustified,

absent that kind of evid ence, in making any intrusions

short of an arrest. Moreover, a perfectly reasonable

apprehension of danger may arise long before the officer

is possessed of adequate information to justify taking a

person into custody for the purpose of prosecuting him

for a crime.” Id. at 1882-83.

Although Terry inv olved the search of a pedestrian's person

rather than a search of the home, the overarching principle is that

“the touchstone of the Fourth Amendment is reasonableness.”

Knights at 591. As such, the difference in the expectation of

privac y on the part the pedestrian and of a person in their home

would simply be a factor to consider in striking the proper balance

between the rights of the indivi dual and effective law

enforcement. 5 This suggests that, rather than a rigid requirement

that a protective sweep in the h ome be incident to an arrest,

courts should consid er a range of factors in balancing the

individual right to priva cy with legitimate law enforcement

objectives.

Another relevant factor ought to be the reasonable likelihood

of a violent reaction by the defendant and, relatedly, the

officers' reasonable apprehension of danger either to themselves or13

to others who may be on the premises. One fact that should inform

officers and courts in making this evaluation is the nature of the

crimes being investigated and whether the subject of the protective

sweep has a criminal record, particularly a violent one. Unlike

Wilson where the subject of the protective sweep was suspected of

writing fraudulent checks, the officers had been informed t hat

Gould was planning to commit murders. Furthermore, officers were

aware of Gould's violent criminal rec ord. Given these

circumstances, the officers were reasonably concerned that, after

being voluntarily admitted into the trailer by Cabral, they could

be ambushed by Gould. Their concern could reasonably have

heightened after Cabral told them Gould was sleeping, but they saw

that he was not in his bed.

Finally, another factor in the reasonableness determination

should be the extent and intrusiveness of the search. We recognize

that a protective sweep must, by definition, be “quick and limited”

and “confined to a cursory visual inspection of those places in

which a person mig ht be hiding.” Buie , 110 S.Ct. 1093, 1094. A

cursory check is a superficial one, limited in both scope and

duration. Florida v. R oyer , 103 S.Ct. 1319, 1325 (1983). It is

rapidly undertaken to look for people who might pose a threat, with

little attention paid to detail. Id. "The [Fourth] Amendment's

protection is not diluted in those situations where it has been

d etermined that legitimate law enforcement interests justify a6 There is likewise doubtless a hard and fast requirement that the officers’ presence on the

premises when the “protective sweep” is commenced not be inconsistent with the defendant’s

Fourth Amendment rights.

14 warrantless search: the search must be limited in scope to that

which is justified by the particular purposes served by the

exception." Id.

Unlike the other factors which must be balanced, there is a

hard and fast requirement that a protective sweep be cursory and

“quick and limited,” 6 but undoubtedly some searches are quicker and

more cursory than others. Once a protective sweep meets this basic

requirement, the more cursory, expeditious, and limited it is

within that permissible continuum, the more likely the balance of

factors will weigh in favor of finding it to be reasonable. It is

particularly significant, in our view, whether the protect i ve

sweep, as is the case here, promptly concluded once the potential

danger ceased to exist.

We note that other circuits have adopted a reasona bleness

approach that does not per se invalidate all protective sweeps not

incident to an arrest. In United States v. Patrick , 959 F.2d 991

(D.C. Cir. 1992), the D.C. Circuit upheld a protective sweep of an

apartment in a narcotics case in which the search warrant had

expired and someone living with the defendant allowed police in to

the apartment, but did not expressly purport to consent to the

search of the defendant's bedroom where the narcoti cs were

ultimately found. The court did not explicitly address whether the7 This suggests that the Wilson panel was likely unaware of Patrick and hence would not

have followed our court’s policy that a panel opinion which would create a conflict between

circuits must be precirculated to all active judges.

15 protective sweep was incident to an arrest, but the drug and weapon

convictions were entirely based on evidence found in the search of

the bedroom and there was no arr est warrant but only an expired

search warrant at the time of the protective sweep. The court

held:

“Once the police were lawfully on the premises, they were

authorized to conduct a protective sweep based on their

reas onable belief that one of its inhabitants was

trafficking in narcotics. Cf

. Maryland v. Buie

, 110

S.Ct. 1093 (1990) (dur ing execution of arrest warrant,

police authorized to do protective sweep of spaces in

house where person posing danger to police could hide and

launch attack if based on reasonable belief that area

swept holds such person). We think the holding in B uie

, notwithstanding the search there was conducted pursuant

to a warrant and not consent, supports the police search

here. Accordingly, the police validly entered the

bedroom when they looked through the open door and saw

Patrick inside.” Patrick , 959 F.2d at 996.

The Patrick opinion is not cited in Wilson

. 7

In United States v. Taylor

, 248 F.3d 506 (6th Cir. 2001), the

Sixth Circuit also upheld a protec tive sweep (absent a valid

warrant) that was not incident to an arrest. The court explained:

“Taylor argues that a protective sweep is authorized

only when it is made incident to a lawful arrest.

Therefore, he co ntends, because Hill had not been

arrested when the officers made their cursory search of

Taylor's apartm ent, the sweep was p er se invalid. In

contrast, the governme n t argues that while Buie and

Briggs were each decided in the f actual context of

officers' making an arrest, nothing in the those opinions

indicates that an arrest is a mandatory prerequisite for

conducting a protective sweep of the area. The16

government further points out that the Buie decision was

based upon the reasoning set forth in the Supreme Court's

earlier decisions in Terry and Long , both of which were

investigative stop cases.

We believe the government presents the more

compelling argument. Once an officer has probable cause

to believe contraband is present, he must obtain a search

warrant before he can proceed to search the premises. See

Segura v. United States

, 104 S.Ct. 3380 (1984). However,

the Supreme Court has held that because evidence may be

removed or destroyed before a warrant can be obtained, an

officer does not violate the Fourth Amendment by securing

the area to be searched and waiting until a warrant is

obtained. (footnote and citation omitted). We think that

it fol lows logically that the principle enunciated in

Buie with regard to officers making an arrest--that the

police may conduct a limited protective sweep to ensure

the safety of those officers--applies with equal force to

an office r left behind to secure the premises while a

warrant to search those premises is obtained. We

emphasize, however, that the purpose of such a protective

sweep is to protect the safety of the officer who remains

at the scene, and for that reason, the sweep must be

limited to a cursory search of the premises for the

purpose of finding persons hidden there who would

threaten the officer's safety.” Taylor

, 248 F.3d at 513-

14.

Finally, as a practical matter, we believe that the need for

police officers to protect themselves by conducting protective

sweeps can be equally acute regardless of whether the sweep is

incident to an arrest.

In our view, this court would be well advised to consider en

banc whether a reasonableness approach that balances a variety of

relevant factors is preferable to th e holding in W ilson.

Nevertheless , this panel is bound to follow W ilson and therefore

upholds the district court's determinati on that the evidence at

issue here was not obtained pursuant to valid protective sweep.17

C. Good Faith Exception to Exclusionary Rule

Given that the protective sweep exception is inapplicable, the

Government argues, in the alternative, that the officers' actions

in this case meet the good faith exception to the exclusionary

rule. This contention was first raised in the Government’s motion

for reconsideration of the district court’s order gra nting the

motion to suppress. In denying the motion to reconsider, the

district court noted that there was no evidentiary hearing as to

good faith, and stated that “this court cannot make a finding on

whether the officers were in good faith or not .” However, the

court went on to discuss the la w and rule that “the good faith

exception to the exclusionary rule is inapplicable to this case.”

The primary purpose of the exclusionary rule “is to deter

future unlawful police conduct and thereby effectuate the guarantee

of the Fourth Amendm ent against unreasonable searches and

seizures.” United States v. Calandra

, 94 S.Ct. 613, 619-20 (1974).

In United States v. Williams

, 622 F.2d 830, 840 (5th Cir. 1980) (en

banc), cert. denied , 101 S.Ct. 946 (1981), this court stated that

“evidence is not to be suppressed under the exclusionary rule where

it is disco vered by officers in the course of actions that are

taken in good faith and in the reasonable, though mistaken, belief

that they are authorized.” We reaffirmed that principle in U nited

States v. DeLeon-Reyna

, 930 F.3d 396, 400-01 (5th Cir. 1991) (en

banc).18

S everal types of good faith exceptions are recognized. An

officer may make a judgmental error, i.e. a “good faith mistake,”

concerning the existence of facts sufficient to constitute the

requisite probable cause or reasonable suspicion. See United

States v. Leon

, 104 S.Ct. 3405 (1984); DeLeon Reyna at 401. An

officer may also act based on an objectively reasonable mistake of

law. U

nited States v. Lopez-Valdez

, 178 F.3d 282 (5th Cir. 1999);

DeLeon Reyna at 401. Further, an officer may generally rely upon

a statute which is later ruled unconstitutional, a warrant which is

later invalidated, or a court precedent which is later overruled.

Williams

.

In United States v. Whaley

, 781 F.2d 417, 418-19 (5th Cir.

1986), this court considered a case where officers could have

obtained a search warrant based on the appearance of marijuana

outside and i n plain view, but instead violated the Fourth

Amendmen t by removing the plants without a warrant and absent

exigent circumstances. The government asserted a good faith

exception because the officers believed they could enter the land

to take the marijuana in plain view without a search warrant. Id.

at 421. In rejecting the argument, this court stated that:

“[t]he exception is not devised for the unlawful conduct

of all officers who mean well. The good faith belief

must be grounded in objective reasonableness. The

mistake of an operative fact or an e rror of technical

nature may not bar admission of evidence. The mistake

here was on a basic point of established law. To extend

the exception so far as to allow evidence of a clearly

unlawful warrantless search of residential property would8 It might be arguable that the officers made a “good faith mistake” of fact in believing that

Cabral, acting with either actual or apparent authority, had given them valid consent to search

Gould's bedroom. However, the Government does not assert this argument on appeal and this

court will not consider nonjurisdictional issues not raised on appeal. United States v. Bigler , 817

F.2d 1139, 1140 (5th Cir. 1987).

19 put too great a premium on ignorance of the law and would

virtually terminate the ex c lusionary rule. This is

neither our wish nor our prerogati ve.” Id. (citations

omitted).

The Government asserts that a number of facts in the record

support application of the good faith exception. For example, the

officers looked only in places where a human could hide, they did

not seize the guns in the closet upon sight, and they discontinued

their sweep when they became aware the defendant had gone outside.

Each of these facts, along with the others stated, would support

the contention that the officers li mited their search to a

protective sweep, and thus their action would be legal if a

protective sweep were allowed when not incident to an arrest.

However, none of these facts falls within the ambit of the good

faith exception. Ultimately, to the extent the officers made a

mistake of law, it could not have been grounded in objective

reason ableness, because it was clearly contrary to W ilson

, which

was then and had been for some six years the established law of

this circuit and had (and has) not been limited or narrowed. Thus,

we cannot conclude that the officers could have reasonably thought

a protective sweep not incident to an arrest would be lawful. 8

Conclusion20

For the foregoing reasons, the district court’s suppression

of the evidence at issue is

AFFIRMED.