## F I L E D United States Court of Appeals Tenth Circuit 

### June 24, 2005 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-3113
JOHN STEVENS HAUK,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 03-CR-20066-01-CM)

Michael L. Harris, Assistant Federal Public Defende r, Kansas City, Kansas, for Defendant-Appellant. Leon J. Patton, Assistant United States Attorney (E ric F. Melgren, United States Attorney, and Robert S. Streepy, Assistant United S tates Attorney, on the briefs), Kansas City, Kansas, for Plaintiff-Appellee.

Before LUCERO , MURPHY , and McCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.2

Defendant-Appellant John Stevens Hauk appeals the d istrict court’s denial of his motion to suppress evidence discovered as a result of a protective sweep of his residence. Mr. Hauk argues that the police lacked reasonable s uspicion for the protective sweep because it was based on uncorrobor ated information in an anonymous tip. Exercising jurisdiction under 28 U. S.C. § 1291, we AFFIRM the district court’s denial of Mr. Hauk’s motion to sup press. However, on plain error review, we conclude that Mr. Hauk’s sentence violat ed his Sixth Amendment rights under United States v. Booker , 125 S.Ct. 738 (2005), and we exercise our discret ion to VACATE the sentence and REMAND to the district c ourt for resentencing.
I. On April 2, 2003, an anonymous caller informed the FBI Violent Crimes Fugitive Task Force (“the Task Force”) that Mr. Hau k was selling illegal drugs out of his house at 5050 Walker in Kansas City, Kansas. The record does not contain any description of the caller, nor does it include a transcript or recording of the call. The only record of the call is a tip sheet, which s tates: Caller states that subject lives at the residence and has large quantities of drugs in the home. Caller states that there is drugs in the ceiling, hall closet by the bedroom, night stand next to the bed and in a duffle bag in the closet. He also has scales in the bedro om. The drugs that he has are cocaine, crack and marijuana. Subject s leeps in the day time and is up at night selling. He has no dogs athis location but does have guns in the home. Caller also states that he is a parole violator and has warrants. He also has a “runner” who goes by the name of Spencer. He drives a red Chevy Astro van. Caller states that he has been in the home and does get drugs from him. Motion to Suppress, R. Vol. I, Doc 19, 1–2. After he received this information,3

Detective Michael Shomin of the Kansas City, Kansas Police Department confirmed an outstanding state warrant for Mr. Hauk’s arrest for violation of parole. He also obtained a photograph of Mr. Hauk. On the following day, a number of Task Force office rs set up surveillance of 5050 Walker. A group of officers met near the resi dence to plan an approach to arrest Mr. Hauk. Before the approach began, a memb er of the surveillance team informed Detective Shomin that a red Camaro had pul led into Mr. Hauk’s driveway. The officer could not describe the driver or tell where he had gone, but he thought that he might have entered the house. Shortly thereafter, Task Force members surrounded the residence, and Detective Shomin and another officer knocked on the front door. After a few minutes, Mr. Hauk answered the door in his boxer sh orts. Recognizing his callers as police officers, Mr. Hauk immediately tried to c lose the door. The officers forced their way into the house and arrested Mr. Hauk immediately inside the front door. Detective Shomin and other officers then fanned out through the house to conduct a protective sweep, which lasted approximat ely five to ten minutes. During the sweep, the officers saw what appeared to be ill egal drugs in several locations in the house. On the strength of their observations during the pr otective sweep, the police obtained a search warrant for Mr. Hauk’s residence. During the ensuing search, the police discovered a large quantity of cocaine and m arijuana in Mr. Hauk’s room,4

marijuana and a scale with white powder residue in the living room, and a suitcase containing crack cocaine and a firearm in the secon d bedroom. Based on the items seized from his house, the Grand Jury for the Distr ict of Kansas returned a twocount indictment charging Mr. Hauk with possession with intent to distribute 50 grams or more of a mixture or substance containing cocaine base and possession with intent to distribute 500 grams or more of a mi xture or substance containing cocaine hydrochloride, each in violation of 21 U.S. C. § 841(a)(1). Mr. Hauk moved to suppress the evidence, arguing th at the protective sweep constituted an illegal search of his house. The di strict court denied the motion to suppress, finding that “there were articulable fact s which rationally led the agents to the reasonable conclusion that another individua l, whether a narcotics customer or Mr. Spencer, might be in the home and might pose a danger to the arresting officers.” Mr. Hauk entered a conditional guilty p lea to count two, reserving his right to appeal the denial of his motion to suppres s. II. Mr. Hauk argues that the protective sweep was unlaw ful because the arresting officers lacked reasonable suspicion thata third party posing a danger to the officers was present in the house. If the protective sweep was unlawful, then the police officers’ observations of drugs in the h ouse could not have been used to support the search warrant, and the products of the ensuing warranted search must be suppressed.5

We review the district court’s findings of fact on a motion to suppress for clear error, viewing the evidence in the light mostfavorable to the government, but the ultimate determination of reasonable suspicion or probable cause is a mixed question of law and fact that we review de novo. Ornelas v. United States , 517 U.S. 690, 699 (1996); United States v. Santos , 403 F.3d 1120, 1124 (10th Cir. 2005). The parties agree on the relevant facts; th erefore, we consider only the legal question whether the protective sweep was justifiedby reasonable suspicion. See Maryland v. Buie , 494 U.S. 325 (1990). We are free to affirm the d istrict court’s decision on any ground supported by the record. United States v. EsparzaMendoza , 386 F.3d 953, 957 (10th Cir. 2004). A challenge to a search necessarily begins with the Fourth Amendment, which provides: The right of the people to be secure in their perso ns, houses, papers, and effects, against unreasonable searches and seiz ures, shall not be violated, and no Warrants shall issue, but upon pro bable cause . . . and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. When they first accosted Mr . Hauk at his home, the police had a warrant for Mr. Hauk’s arrest. They did not (at that time) have a warrant to search the house. An arrest warrant, however, “imp licitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. United States , 445 U.S. 573, 603 (1980).6

In Maryland v. Buie , the Supreme Court recognized an exception to the warrant requirement for a cursory, limited search o f a residence incident to arrest—a so-called protective sweep—if the circumst ances present “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the ar ea to be swept harbors an individual posing a danger to those on the arrest s cene.” 494 U.S. at 334. This is essentially the same “reasonable suspicion” standar d that justifies the warrantless frisk of an individual or the warrantless search of a vehicle’s passenger compartment incident to the driver’s arrest. Id. at 332–34; see also Terry v. Ohio , 391 U.S. 1 (1968) (warrantless frisk); Michigan v. Long , 463 U.S. 1032 (1983) (search of passenger compartment). Reasonable susp icion requires the officer to act on “something more than an inchoate and unparticularized suspicion or hunch.” United States v. Sokolow , 490 U.S. 1, 7 (1989) (internal quotation marks om itted). Reasonable suspicion may be established by informat ion that is “different in quantity or content” and less reliable than the inf ormation required to establish probable cause. Alabama v. White , 496 U.S. 325, 330 (1990). A. Appellant argues that rather than being based on sp ecific, articulable facts, the protective sweep of his home was based on “gene ralizations by [the officers] about drug offenders, their use of weapons, and the ir use of other people,” and that the police officer conceded in his testimony t hat the sweep “would have7

occurred regardless of the information in the anony mous tip.” He thus argues that the search failed the constitutional standards for protective sweeps set forth in
Buie . The testimony to which Appellant refers is that of Detective Michael Shomin: Q: So I take it then it is just a matter of routine when you are executing arrest warrants at a particular residence , that a protective sweep then is done, because in your experience, the re is at least some likelihood that some other person might be present, correct? A: Absolutely. Q: So, as a general policy of the police department , when you folks effect an arrest warrant, you routinely do a protective sweep regardless, right? A: For officer safety, absolutely. Testimony of Detective Michael Shomin, R. Vol. II, 22:10–19. The Fourth Amendment does not sanction automatic se arches of an arrestee’s home, nor does the fact-intensive questi on of reasonable suspicion accommodate a policy of automatic protective sweeps . Given the specific mission of the Task Force to apprehend violent fugitives, i t may be that its arrests involve a heightened level of danger. If this is the case, the circumstances of each arrest might well create reasonable suspicion sufficient f or a protective sweep. Applied indiscriminately to all arrest warrants, however, t he Kansas City policy sweeps too broadly. For example, a routine protective swe ep would presumably be inappropriate if conducted by officers serving a wa rrant for a traffic ticket or8

securities fraud. Cf. Ybarra v. Illinois , 444 U.S. 85, 94 (1979) (“The . . . Terry exception does not permit a frisk for weapons on le ss than reasonable belief or suspicion directed at the person to be frisked, eve n though that person happens to be on premises where an authorized narcotics searchis taking place

. ”); Denver Justice & Peace Committee, Inc. v. City of Golden , ___ F.3d ___, 2005 WL 950648 (10th Cir. April 26, 2005) (rejecting the ar gument that officer safety and general efficiency authorize the police to frisk, w ithout reasonable suspicion, any person who enters an area where a search warrant is being executed). Neither do we endorse the Task Force’s practice of automatic protective sweeps based on the assumption that “drug houses” are inherently dangerous. Detective Shomin testified that drug houses are, in his experience, places of violence, and this is no doubt true. However, giv en the Supreme Court’s general disinclination to carve out subject-matter-specific exceptions from the Fourth Amendment, see, e.g. , Florida v. J.L. , 529 U.S. 266, 272–73 (2000) (rejecting a firearms exception to the Fourth Amendment and sugg esting that a narcotics exception would be equally improper); Mincey v. Arizona , 437 U.S. 385 (1978) (rejecting a “murder scene exception” to the Fourth Amendment), its rejection of a “felony drug investigation” exception to the knoc k-and-announce rule, see Richards v. Wisconsin , 520 U.S. 385, 391–94 (1997), and the malleability of the concept of a “drug house,” we decline to endorse th e suggestion that the Fourth9

Amendment accommodates a “drug house” exception. W e note also that, even if “drug houses” were categorically eligible for prote ctive sweeps, police would require specific, articulable facts to support reas onable suspicion that a given building is a “drug house.” If the government were relying on the validity of t he Kansas City policy to support this protective sweep, or if the subjective motivations of the officers in undertaking the sweep were controlling, we would th us have to reverse this conviction. In light of Detective Shomin’s testimo ny, there is every reason to believe that the police engaged in the sweep of Mr. Hauk’s residence not because they believed they had reasonable suspicion of dang er, but because they were executing a “general policy” of conducting protecti ve sweeps in the course of all arrests within a home. But the Supreme Court has s quarely held that the legality of searches and seizures under the Fourth Amendmentdepends not on the subjective motivations of the police, but on whethe r there was an objectively reasonable basis for the search or seizure. United States v. Whren , 517 U.S. 806, 813 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”); see also United States v. Ben Abdenbi , 361 F.3d 1282, 1292-93 (10th Cir.), cert denied, 125 S. Ct. 197 (2004) (holding that the subjective intentions of the officer are irrelevantto the question whether an individual consented to an encounter with the polic e). Thus, the question here is10

not why the officers conducted the protective sweep of Mr. Hauk’s home (apparently the answer to that is that they were fo llowing standard procedures), but whether the totality of the circumstances estab lished a reasonable basis for them to do so. Resolving that question requires an examination of the anonymous tip that gave rise to the encounter, as well as the other circumstances that gave rise to suspicion that the officers were in danger when they were inside Mr. Hauk’s home making the arrest. We note, though, that the actual, subjective motivations of the police officers in conducting the sweep may have relevance to the degree of deference the district court should accord the officer’s prof essional experience and judgment regarding whether reasonable suspicion of danger existed. Ordinarily, as the Supreme Court has instructed, district court s must accord “due weight” to the judgments of police officers on the ground thattheir “experience and specialized training” may allow them “to make infer ences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” United States v. Arvizu , 534 U.S. 266, 273 (2002); see also
Santos , 403 F.3d at 1133. Where, however, there is reaso n to believe that the officers conducted the search not on the basis of t he particular facts of the case but on some other grounds, such as standard operati ng procedure, the inference that the judgment reflected their superior training and experience is11

correspondingly weakened, and the “due” weight give n their judgment is correspondingly less. Cf. Santos , 403 F.3d at 1126 (explaining, in a case where a motorist’s refusal of consent to search may have pr ecipitated his detention in the course of a traffic stop, that the “due weight” giv en to the district court’s inferences “is substantially diminished when there is reason to believe those inferences were affected by an illegitimate conside ration”).
B

. When the articulable facts supporting reasonable su spicion come from an informant, the police must have an objective basis to rely on the tip. If anonymous, uncorroborated tips were deemed a sufficient basis for search, malicious informants could use the device of a phoney tip to wreak injury (indignity, invasion of privacy, suspicion, and sheer annoyance) on thei r enemies, rivals, or acquaintances without fear of being held responsibl e. See United States v. Johnson , 364 F.3d 1185, 1190–91 (10th Cir. 2004) . Even if the informant is wellmeaning, reliance on anonymous uncorroborated tips could result in searches based on far less than an objective reasonable basis. If in Mrs. Grundy’s fertile imagination, the innocent doings of her neighbors a ssume the aspect of dire criminality, her report of her conclusions to the p olice does not mean that a reasonable basis for suspicion exists. Informationis only as good as its source, and if police do not know the source and have no other means for verifying the information, the mere fact that an anonymous tipste r thinks there is mischief afoot12

is not a sufficient basis for police action. When police obtain “sufficient independent corrobor ation,” however, even an anonymous tip generally provides a basis for reason able suspicion. United States v. Danhauer , 229 F.3d 1002, 1006 (10th Cir. 2000). By corrobo rating predictive information in an anonymous tip, police officers “t est the informant’s knowledge and credibility,” getting some assurance that the t ip is reliable. United States v.
Tuter , 240 F.3d 1292, 1297 (10th Cir. 2001) (quotingJ.L. , 529 U.S. at 271). Police are entitled to rely on corroborated anonymous tips “because [if] an informant is shown to be right about some things, he is probablyright about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity.” White , 496 U.S. at 331.
In Alabama v. White , for example, an anonymous caller informed the pol ice that the suspect would leave a specific apartment at a particular time, that she would drive a brown Plymouth station wagon with a b roken right tail light to a particular motel, and that she would be carrying co caine in a brown leather case. Id. at 327. The officer who received the tip drove to the apart ment mentioned in the tip, where he saw the suspect come out of the b uilding, with nothing in her hands, and get into a brown Plymouth station wagon with a broken right tail light. The officer followed the suspect while she drove “t he most direct route” to the motel mentioned in the tip. The officer stopped th e suspect before she reached the motel. The suspect consented to a search of he r vehicle, which revealed13

marijuana and a small amount of cocaine. Though itcharacterized White as a “close case,” the Supreme Court held that corroboration of the predictive information in the tip created reasonable suspicion for the initial stop. Cf. Illinois
v. Gates , 462 U.S. 213, 244-46 (1983) (finding a search warrant based on an anonymous tip to be supported by probable cause whe n the police confirmed the tip’s prediction of the suspect’s flight informatio n, destination, and details about his return trip); United States v. Hinojos , 107 F.3d 765 (10th Cir. 1997) (upholding a traffic stop based on an anonymous tip because the informant predicted the suspect’s route of travel through Okl ahoma, claimed to have observed the suspect’s activities directly, and pas sed the tip to a particular Kansas DEA agent, suggesting a preexisting relationship). Generally, to be sufficient to support an inference of credibility and reliability, the corroborated information must be “ predictive” in nature. Predictive information is defined broadly as knowle dge that the informant could not acquire from any source but the suspect, whethe r directly or indirectly, providing reason to believe that the informant has “inside information—a special familiarity with [the suspect’s] affairs,” and is n ot just a member of the “general public.” White , 496 U.S. at 332. In Florida v. J.L. , an anonymous caller reported that “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” 529 U.S. at 268. Officers went to the bus stop,14

where they saw J.L., a young black male wearing a p laid shirt. An officer approached J.L., told him to put his hands up, and frisked him, finding a gun in his pocket. Id. The Court held that the tip “lacked the moderate indicia of reliability present in White ” because the tip “provided no predictive informati on and therefore left the police without means to testthe informant’s knowledge or credibility.” Id. at 271. The Court rejected the argument that “acc urate description of a suspect’s readily observable locat ion and appearance” was sufficient to justify reliance on the tip because i t “does not show that the tipster has knowledge of concealed criminal activity.” Id. at 272. Reliance on an anonymous tip is justified when the tip contains “a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.”
Gates , 462 U.S. at 245, quoted in White , 496 U.S. at 332. Even if the facts corroborated are themselves innocent, as in Gates and White , they may show the informant to be a reliable source of information no t available to the public or the police, not merely a neighbor with ulterior motives or an active imagination. Corroboration of information other than predictive facts, such as the basis of the informant’s knowledge, the circumstances und er which it was obtained, and the amount of detail about the alleged criminal act ivity, can also justify reliance on an anonymous tip in appropriate circumstances. See Gates , 462 U.S. at 23415

(“[I]f we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along w ith a statement that the event was observed firsthand, entitles his tip to greaterweight than might otherwise be the case.”). We stress that this case involved a protective swee p, rather than an investigative detention or search, like that in White and J.L. , and thus presents somewhat different legal considerations

. In the investigative detention cases, reasonable suspicion must support both steps in the encounter—the investigative detention and the ensuing search. The J.L. Court expressly limited its holding to cases in which the officer relies on the tip to mak e the initial stop: [T]he requirement that an anonymous tip bear standa rd indicia of reliability in order to justify a stop in no way di minishes a police officer’s prerogative, in accord with Terry , to conduct a protective search of a person who has already been legitimatel y stopped. We speak in today’s decision only of cases in which th e officer’s authority to make the initial stop is at issue.
J.L. , 529 U.S. at 274. An arrest warrant gives the polic e unquestioned authority to detain the suspect. Reasonable suspicion is req uired only for the second step, the protective sweep. This step is less intrusive than the first. The suspect has already been seized under authority of a warrant, a nd if he has been arrested in his house, the threshold of the home has already been b reached. Cf. Payton , 445 U.S. at 585 (“[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”). As a prote ctive measure incident to a1 The tip is ambiguous regarding which of the two men , Hauk or Spencer,

drives the van, but because the preceding sentence in the tip sheet refers to Spencer, it is more likely (and certainly objective ly reasonable to assume) that the “he” in the next sentence refers to Spencer. 16 valid seizure, a protective sweep incident to arres t therefore does not intrude on a suspect’s Fourth Amendment rights to the same extent as an investigatory detention. Moreover, a tip leading to a protective sweep incident to a lawful arrest is a less propitious vehicle for the malicio us tipster: because the target is already placed under arrest, the marginal gain to t he tipster in terms of the increased indignity, invasion of privacy, or annoya nce factor is substantially diminished. Thus, in examining the protective swee p that took place in this case, we have no need to determine whether the evidence w ould be sufficient to justify an investigatory detention or search.
C. Let us turn, then, to the anonymous tip in Mr. Hauk ’s case. The tip contained four different types of information: (1) identification of Mr. Hauk as a parole violator with outstanding warrants, togetherwith his address; (2) information that he sleeps during the day and has n o dogs; (3) information regarding the whereabouts in the house of drugs, drug sales equipment (scales), and guns; and (4) information that he has an associ ate named “Spencer” who drives a red Chevy Astro van. 117

The first category of information—identification of Mr. Hauk as a parole violator, and his address—is not precisely “predict ive” information, but it indicates more than casual observation. General in formation, such as the suspect’s address or the make of the suspect’s vehi cles, “is clearly insufficient for probable cause or even reasonable suspicion.” United States v. Jenkins , 313 F.3d 549, 555 (10th Cir. 2002). As we observed inUnited States v. Tuter , “Almost anyone can describe the residents of, and vehicles at, a particular home without having any special knowledge of what goes on inside the home.” 240 F.3d at 1297. But knowledge that Mr. Hauk was a parole vio lator with outstanding warrants suggests something more than casual observ ation by a member of the general public. To be sure, without remarkable exe rtion, a tipster might well learn of Mr. Hauk’s status as a parolee. See Kansas Department of Correction, Kansas Adult Supervised Population Electronic Repos itory, at http://docnet.dc.state.ks.us (Offender Search). But knowledge of parole violations and outstanding warrants is more difficu lt to come by, in the absence of acquaintance with the suspect and more intimate fam iliarity with his affairs. The police corroboration of this information therefore provides some basis for judging the credibility and reliability of the tip. The second category of information, that Mr. Hauk s leeps during the day and has no dogs, is “predictive” both in the ordina ry sense (it is a prediction that18

during the day, Mr. Hauk will be sleeping and will be unaccompanied by man’s best friend) and in the more general sense that it is information unlikely to be known by the general public. White , 496 U.S. at 332; Gates , 462 U.S. at 245. The information was corroborated when the officers arrived during the day and were met at the door, several minutes after they kn ocked, by Mr. Hauk clad only in his boxer shorts, with no dog in evidence. His state of undress supported a reasonable (though of course not certain) inference that he had been in bed. This corroboration thus lends a bit more weight to the t ip—but not much, since the facts of diurnal sleep and doglessness are not unco mmon and do not require much in the way of observation. The third category of information—location of drugs , drug scales, and guns—is predictive in the sense of not being known to the general public, and would be highly supportive of the reasonableness of the protective sweep if it were reliable. But this portion of the tip was completely uncorroborated. We do not find that the corroboration of the rest of the tip was sufficiently powerful to carry with it a reasonable basis for accepting the credibility and veracity of this portion. On the other hand, the information is hig hly detailed, reporting the presence of drugs “in the ceiling, hall closet by t he bedroom, night stand next to the bed and in a duffle bag in the closet,” along w ith “scales in the bedroom.” Moreover, the tipster claimed to be reporting firsthand information, which he19

gleaned from being inside the house in the course o f purchasing drugs from Mr. Hauk. (“Caller states that he has been in the home and does get drugs from him.”) This degree of detail, claim of first-hand knowledg e, and information about the circumstances of learning the information, lends we ight to the credibility of the tip. See Gates , 462 U.S. at 234. These factors distinguish the t ip in question from the anonymous calls in J.L. and White , which did not indicate the basis of the informant’s knowledge. In this case, however, we need not resolve whether this portion of the tip, in isolation, could support reasonable suspicion. We find only that the totality of the circumstances support s the reasonableness of the protective sweep. The fourth category of information in the tip—that Mr. Hauk had an associate named “Spencer” who drove a red vehicle—i s ultimately the most important. To be sure, for an anonymous tip to sup port reasonable suspicion, the tip must “be reliable in its assertion of illegality , not just in its tendency to identify a determinate person.” J.L. , 529 U.S. at 272 (emphasis added). There is nothing illegal in the State of Kansas about having an associate named Spencer, even assuming he drives a red car. But in conjunct ion with other events that took place the day of the arrest, this information power fully supported an inference that there was another man in the house who might h ave reason to assist Mr. Hauk in resisting arrest, and pose a danger to the offic ers.20

On the day of the arrest, as they approached Mr. Ha uk’s residence, the police had not only the knowledge of the allegation s in the anonymous tip, but also an arrest warrant for Mr. Hauk for violating p arole on a drug trafficking conviction. That gave the Task Force officers reas on to suspect that Mr. Hauk might be involved with illegal drugs, and that he m ight be less than exemplary in his compliance with the lawful commands of law enfo rcement. Unlike some other crimes, involvement in the drug trade is not uncomm only associated with violence. See, e.g. , Harmelin v. Michigan , 501 U.S. 957, 1002–03 (1991) (citing studies demonstrating “a direct nexus between illeg al drugs and crimes of violence”). This would put any reasonably prudent police officer, executing an arrest warrant for a drug offense parole violator, on his guard. While they were waiting outside the residence, a re d Camaro pulled into Mr. Hauk’s driveway. The driver disappeared, perhaps into the house, though the officers could not see where he had gone. The unid entified driver’s apparent entry into Mr. Hauk’s house without knocking or req uiring permission to enter gave the police reason to think that the driver was either the householder or a close associate, perhaps the runner. When Mr. Haukappeared at the door shortly thereafter in boxer shorts, it seemed to confirm th at the man who emerged from the vehicle was someone other than Mr. Hauk, on the assumption that it is unusual for a person to enter his house and immediately dis robe. The police therefore had21

a reason to suspect that there was an unidentified person lurking somewhere in the house. Mr. Hauk’s effort to retreat into his house reinfor ced the officers’ reasonable suspicion that the situation was dangero us. At the very least, forcible resistance by the subject of a warrant justifies an officer’s suspicion that the arrestee has not given up on crime. Cf. Illinois v. Wardlow , 528 U.S. 119 (2000) (holding that the defendant’s unprovoked flight fro m police officers in a high crime area created reasonable suspicion for a Terry stop). Depending on the facts known to the officer, it may suggest a great deal m ore. Based on the tip and the warrant, the officers had reason to suspect that Mr . Hauk was selling illegal drugs. Mr. Hauk’s attempt to slam the door on the officers gave them reason to suspect that somethingwas going on in the house that Mr. Hauk did not want them to see and that any third party in the house m ight also resist their efforts to serve the warrant. Viewed as a totality, the facts in this case supported each element required to justify a protective sweep. When the Task Force officers knocked on Mr. Hauk’s door, they knew that (1) Mr. Hauk violated p arole on a narcotics trafficking conviction; (2) an anonymous informant claimed that Mr. Hauk was selling drugs out of his house, that he had a runne r named Spencer, and that he had guns in the house; (3) an unidentified individu al had recently parked in the22

driveway and might have entered the house, and (4) Mr. Hauk attempted to slam the door on the officers. Police are predisposed by their instinct for self-p reservation to assume that an unknown situation is dangerous. The Fourth Amen dment limits officers’ ability to act on this assumption, but we must take care not to restrict officers’ common-sense precautions, particularly in cases inv olving reasonable suspicion. As the Supreme Court has frankly stated, Articulating precisely what “reasonable suspicion” and “probable cause” mean is not possible. They are common-sense , nontechnical conceptions that deal with the factual and practica l considerations of everyday life on which reasonable and prudent men, not legal technicians, act. . . . They are . . . fluid concep ts that take their substantive content from the particular contexts in which the standards are being assessed. Ornelas , 517 U.S. at 695 (internal citations omitted). Re asonable suspicion requires a showing “considerably less than preponde rance of the evidence.” Wardlow , 528 U.S. at 123. On the facts of this case, a reasonable officer wou ld take precautions to make sure that no hidden threatwas lurking in the house. Mr. Hauk argues that the officers should have condu cted a more thorough investigation to corroborate the tip before they ar rested him. The officers might, for example, have waited to see whether Mr. Hauk ha d a stream of short-term visitors consistent with a retail drug operation. But the principle behind this argument would require officers to delay service of a valid arrest warrant23

whenever circumstances suggest that a protective sw eep might be necessary. Efforts to enforce the Fourth Amendment through det errence of unreasonable police behavior should be tailored not to interfere with the proper execution of police functions. See United States v. Calandra , 414 U.S. 338, 347 (1974); Johnson , 364 F.3d at 1190 (citing cases). Restricting off icers from executing a valid arrest warrant on the possibility that they m ight discover evidence in the house would deter reasonable police behavior. We thus conclude that the facts known to the Task F orce officers created a reasonable suspicion that a dangerous third party w as inside Mr. Hauk’s house at the time of the arrest. The measures taken in this case were therefore reasonable, and the district court properly denied Mr. Hauk’s m otion to suppress.
III. Mr. Hauk filed a supplemental brief arguing that hi s sentence was invalid under Blakely v. Washington , 124 S.Ct. 2531 (2004). Considering his argument in light of United States v. Booker , 125 S. Ct. 738 (2005), we vacate Mr. Hauk’s sentence and remand to the district court for resen tencing. Booker extended the Sixth Amendment holding of Blakely , concluding that in the context of the mandatory federal Sentencing Guidelines, “[a]ny fact (other than a prior conviction) which is necessary to supp ort a sentence exceeding the maximum authorized by the facts established by a pl ea of guilty or a jury verdict24

must be admitted by the defendant or proved to a ju ry beyond a reasonable doubt.” 125 S. Ct. at 756. To remedy this constit utional infirmity, the Court severed two provisions of the Sentencing Reform Actof 1986: 18 U.S.C. § 3553(b)(1), which required courts to impose a sente nce within the applicable Guidelines range; and 18 U.S.C. § 3742(e), which es tablished standards of appellate review, including de novo review of departures from the Guidelines
range. See Booker , 125 S. Ct. at 764. Bookermakes the Guidelines effectively advisory. Courts must consider the Guidelines in a ddition to other sentencing factors, see 18 U.S.C. § 3553(a), but they are not required to i mpose a sentence within the applicable Guidelines range, and sentenc es will be reviewed for reasonableness. See Booker , 125 S. Ct. at 765–66. Mr. Hauk pleaded guilty to count two of the indictm ent, which charged possession with intent to distribute 768.6 grams of cocaine. At his sentencing hearing, the government argued that Mr. Hauk was re sponsible for crack cocaine and a firearm discovered in the bedroom occupied by Spencer Starns (the “Spencer” who played a role in the preceding sectio n of this opinion). Mr. Hauk contested the government’s evidence at sentencing, arguing that the drugs and firearm found in Mr. Starns’s room should not be attributed to him. The district court overruled Mr. Hauk’s objections after an evid entiary hearing, concluding that the crack cocaine was attributable to Mr. Haukunder a theory of jointly25

undertaken criminal activity. See United States v. Mendez-Zamora , 296 F.3d 1013, 1020 (10th Cir. 2002). With respect to the f irearm, the court recognized that Mr. Hauk did not directly possess the gun, butit determined that the offense conduct still satisfied the requirements of U.S.S.G . § 2D1.1(b)(1). To reach this conclusion, the district court found that Mr. Hauk could not show that a connection between the drugs and the weapon was cle arly improbable. See id. Application Note 3; United States v. Humphrey , 208 F.3d 1190, 1210-11 (10th Cir. 2000) (explaining the application of U.S.S.G. § 2D1.1(b)(1)). The district court determined Mr. Hauk’s base offen se with reference to all of the drugs discovered in his house. See U.S.S.G. § 2D1.1, Application Note 12 (“Types and quantities of drugs not specified in th e count of conviction may be considered in determining the offense level.”). Th e total quantity of drugs, including those discovered in Mr. Starns’s room, re sulted in a base offense level of 30. See id. § 2D1.1(b)(5). The firearm in Mr. Starns’s room increased the base offense by two levels, to 32. See id. § 2D1.1(b)(1). The district court reduced the adjusted offense level by three points for acceptance of responsibility,

see U.S.S.G. § 3E1.1(a), (b), resulting in a total offe nse level of 29, which indicated a sentencing range of 140 to 175 months i mprisonment. The court sentenced Mr. Hauk to 140 months imprisonment, the minimum sentence in that range. Based solely on the drug quantities admitte d by the defendant, and without26

an adjustment for acceptance of responsibility, Mr. Hauk’s base offense level would have been 26, see id. § 2D1.1(c)(7), and his sentencing range would have been 110 to 137 months. See id. § 5A. Based on the admitted quantities, and giving Mr. Hauk credit for acceptance of responsibi lity, the offense level would be 23, and the sentencing range would be 84 to 105 months. See U.S.S.G. § 3E1.1(a), (b); id. ch. 5, pt. A. Either way, Mr. Hauk’s sentence was in excess of the sentencing range based on the admitted facts. Because Mr. Hauk did not raise his Blakely challenge in the district court, we review for plain error. United States v. Gonzalez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005) (en banc). To show plain error, M r. Hauk must establish three elements: (1) the district court committed error; ( 2) the error was plain or obvious; and (3) the error affected his substantial rights. United States v. Cotton , 535 U.S. 625, 631 (2002). If these conditions are met, the Court may exercise its discretion to correct the error if it seriously aff ects the fairness, integrity, or public reputation of judicial proceedings. Id. at 631–32. We conduct plain-error analysis “less rigidly when reviewing a potential c onstitutional error.” United States v. Dazey , 403 F.3d 1147, 1174 (10th Cir. 2005) (quoting United States v.
James , 257 F.3d 1173, 1182 (10th Cir. 2001)). It is now well established that constitutional Bookererror satisfies the first two criteria for plain error review. We turn, then , to the third and fourth.27

A. Substantial Rights To violate a defendant’s substantial rights, “the e rror must have been prejudicial: It must have affected the outcome of t he district court proceedings.” United States v. Olano , 507 U.S. at 725, 734 (1993). The party that fail ed to raise the issue below bears the burden of establishing pr ejudice. Gonzalez-Huerta , 403 F.3d at 733. The defendant must show “a reasonable probability t hat, but for [the error claimed], the result of the proceeding would have been different.” United States v. Dominguez Benitez , 124 S. Ct. 2333, 2339 (2004); see also United States v. Magleby , 241 F.3d 1306, 1317 (10th Cir. 2001) (“[A]n erroraffects a substantial right when it has a substantial influence on the ou tcome or leaves one in grave doubt as to whether it had such effect.”) (quotatio n marks omitted). In a case involving constitutional Bookererror, a defendant can show an effect on his substantial rights in at least two ways. First, the defendant may be able to demonstrate “a reasonable probability that a jury applying a reasonable doubt standard would not have found the same facts that the judge found by a preponderance of the evidence.” See Dazey , 403 F.3d at 1175. Appellate courts should therefore review the district court’s factua l analysis at sentencing and determine whether the evidence presented by the def endant could call the district court’s conclusions into reasonable doubt. See id. Second, a defendant may be able to show a reasonable probability that consider ation of the sentencing factors2 The circumstances may also indicate that a lower sentence is particularly

unlikely, for example, when the court imposes a sen tence at the top of the Guidelines range. Cf. United States v. Riccardi , ___ F.3d ___, 2005 WL 896430 at *20 (10th Cir. April 19, 2005) (finding a consti tutional Bookererror to be harmless because the court’s factual findings were supported by overwhelming evidence and the court sentenced at the top of the Guidelines range). 28 in § 3553(a) would have led the district court to i mpose a sentence outside the applicable Guidelines range. See, e.g. , United States v. Trujillo-Terrazas , ___ F.3d ___, 2005 WL 880896 *4 (10th Cir. April 13, 20 05). 2 The Guidelines require sentencing courts to conside r “relevant conduct” at sentencing, see U.S.S.G. § 1B1.3, including uncharged drug quantiti es “if they are part of the same conduct for which the defendant wa s convicted.” United States v. Mendez-Zamora , 296 F.3d at 1020 (quoting United States v. Washington , 11 F.3d 1510, 1516 (10th Cir. 1993)). After considering the evidence submitted at sentencing, the district court found, by a preponde rance of the evidence, that Mr. Hauk and Mr. Starns jointly sold illegal drugs and that the presence of crack cocaine in Mr. Starns’s room was reasonably foresee able to Mr. Hauk. Accordingly, the district court attributed the crac k cocaine and the firearm to Mr. Hauk for sentencing purposes. See id. 296 F.3d at 1020 (“Relevant conduct includes reasonably foreseeable acts of co-conspirators in furtherance of their conspiracy.”) (citing U.S.S.G. § 1B1.3(a)(1)(B)). The finding of a jointcriminal enterprise was important to both of these enhanceme nts: without this finding there3 It is unclear whether the district court believed the firearm was

attributable to Mr. Hauk solely because of the crac k cocaine found in Mr. Starns’s room or if the district court believed that the fir earm was independently attributable to Mr. Hauk based on its presence in h is home. 29 would be no support for the drug quantity enhanceme nt, and the firearm enhancement would be questionable. 3 The district court relied on two pieces of evidence to support the finding of jointly undertaken criminal activity: the anonymous tip and Mr. Hauk’s testimony that there was, according to the court, a “business relationship” between Mr. Hauk and Mr. Starns. R. Vol. IV 50. This evidence is s ufficiently equivocal that there is a reasonable probability that a jury using a rea sonable doubt standard would find that Mr. Hauk’s possession of cocaine was not part of a joint criminal enterprise with Mr. Starns. The anonymous tip contained some information that turned out to be generally correct, such as the presence of powde r cocaine, crack cocaine, and marijuana in the house and the lack of any dogs, bu t some of the specific information in the tip, such as the allegation thatMr. Hauk stored drugs in the ceiling, was not corroborated. The only elements o f the tip suggesting joint criminal activity were the tipster’s statement thatMr. Hauk sold crack cocaine and his statement that Mr. Starns was a “runner” for Mr . Hauk. While corroboration of some information in the tip may be sufficient to co nclude, under a preponderance of the evidence standard, that Mr. Starns and Mr. H auk jointly operated an illegal30

drug enterprise, we question whether a jury would c ome to the same conclusion using the more onerous reasonable doubt standard. Mr. Hauk’s testimony also provides an uncertain bas is for the finding of joint drug sales activity. For example, Agent Vola nti testified that Mr. Hauk told him that “he had to go through his friend Spence” a nd that he “would use Spence . . . as the middle man.” R. Vol. IV 14–15. This va gue reference is the only suggestion that Mr. Starns acted as a middle man ator near the time of the arrest. In the full context of the interview, however, it appears that Mr. Hauk could have been describing his introduction to suppliers throu gh Mr. Starns in the past rather than a continuing pattern of activity. Mr. Hauk ac knowledged that Mr. Starns had introduced him to suppliers in the past, but he tes tified that the most recent introduction occurred approximately a year before t he arrest. While this admission may make it more likely than not that Mr. Starns pl ayed a joint role in “the commission of the offense of conviction,” U.S.S.G. § 1B1.3(a)(1), the connection between this admission and the district court’s con clusion is sufficiently distant in time that a fact-finder applying a reasonable doubtstandard might not make the same determination. Cf. United States v. Mozee , ___ F.3d ___, 2005 WL 958498 at *8 (10th Cir. April 27, 2005) (concluding that t he evidence was sufficient to satisfy a preponderance standard, but there was a r easonable probability that a jury would not come to the same conclusion under a reaso nable doubt standard).31

Moreover, the district court did not discuss severa l pieces of evidence that undermine the conclusion that he and Mr. Starns wer e selling illegal drugs together. For example, there is evidence that the door to Mr. Starns’s room was locked, an assertion which, if true, would support the theory that his and Mr. Starns’s dealings were independent. During his tes timony, Mr. Hauk discussed a photograph of the arrest scene and indicated that t he police broke down the door to Mr. Starns’s room, which supports his claim the doo r was locked. In addition, Mr. Hauk testified that Mr. Starns had been staying wit h him for only three weeks to a month at the time of his arrest. He admitted that he and Mr. Starns knew many of the same suppliers, but he insisted they did not pu rchase large quantities of drugs together and Mr. Starns did not bring people to his house to buy drugs. Perhaps most significantly, while readily admitting to possession of all other drugs in the house, Mr. Hauk consistently denied any connection to crack cocaine, which was the substance found in the suitcase in Mr . Starns’s room. Agent Volanti testified that on the day of the arrest, he mistook some of the cocaine that was plainly visible in Mr. Hauk’s house for crack. When he mentioned to Mr. Hauk that there was a lot of crack in the house, Mr . Hauk told him that it was only cocaine and that he did not sell crack. R. Vol. IV 11. In a post-arrest interview with Agent Volanti, Mr. Hauk again denied selling c rack cocaine. Id. at 18–19. The government suggests that the crack cocaine belo nged to Mr. Hauk because the32

suitcase in Mr. Starns’s room was very similar to asuitcase containing marijuana that was found in his own room. The record does no t indicate how similar the suitcases were, but without some specific reason to believe that they were anything more than two ordinary black suitcases, it is diffi cult to see how the resemblance supports the inference. Using the “less rigid” approach required in analysi s of constitutional plain errors, the cumulative effect of this conflicting e vidence leads us to conclude that there is a reasonable probability that a fact-finde r using a reasonable doubt standard would not reach the same conclusion as the district court. Accordingly, we hold that the district court’s Sixth Amendment e rror affected Mr. Hauk’s substantial rights. B. The Integrity, Fairness, or Public Reputation of Judicial Proceedings An appellate court has discretion to correct an err or not preserved at trial when the error affects the integrity, fairness, or public reputation of judicial proceedings. Gonzalez-Huerta , 403 F.3d at 736. This inquiry is independent fro m our analysis of whether a plain error affects a def endant’s substantial rights. Id. The burden to satisfy this fourth prong of plain er ror analysis is on the defendant.
See Olano , 507 U.S. at 734. This Court has identified three “non-exclusive” factors that guide the exercise of this discretion to correct constitutional Booker errors that are plain. United States v. Clifton , ___ F.3d ___, 2005 WL 941581 at33

*6 (10th Cir. April 25, 2005). First, if the under lying right is constitutional, we are more likely to conclude that a remand would be appropriate. See Dazey , 403 F.3d at 1178; see also Gonzalez-Huerta , 403 F.3d at 743 (Ebel, J., concurring in part, dissenting in part) (arguing that failing to correct a constitutional plain error is “much more likely to cast judicial proceedings i n disrespect”). Second, if the defendant challenged the factual basis of the judic ial findings that affected his substantial rights, this weighs in favor of a reman d. Dazey , 403 F.3d at 1178. Third, the magnitude of the difference between the sentence authorized by a jury’s verdict or a plea of guilty and the sentence permitted after mandatory judicial fact finding affects whether or not we should correct th e error. Id. at 1178-79. All three of these factors suggest that a remand wo uld be appropriate in Mr. Hauk’s case. First, the error in his sentence is t he type of constitutional error identified by the Bookermerits majority as a violation of a defendant’s Si xth Amendment rights. To leave an erroneous sentence i ntact after acknowledging that it was calculated through constitutionally sus pect means could reflect poorly on the public reputation of the judiciary. Second, Mr. Hauk vigorously contested the factual basis of the enhancements that increase d his sentence. Cf. United States v. Maldonado-Ramires , 384 F.3d 1228, 1231 n.1 (10th Cir. 2004) (holding that a Blakely violation is not plain error when the defendant did not dispute the court’s factual findings, even if the court had dis cretion to reduce the sentence).34

Where a defendant acquiesces to the district court’ s findings of fact that support an enhancement with little or no objection, leaving the resulting plain error uncorrected poses little risk to the fairness or in tegrity of judicial proceedings. United States v. Magallanez , No. 04-8021 (10th Cir. May 17, 2005). However, when a defendant vigorously contests a factual find ing that leads to a mandatory enhancement there is a much stronger argument for e xercising our discretion to correct the error. Mr. Hauk’s emphatic argument, t hat the offense to which he pleaded guilty was not part of a joint criminal enterprise with Mr. Starns, weighs in favor of remand. Finally, we consider whether the mandatory applicat ion of judge-found facts substantially increased Mr. Hauk’s sentence. This depends, in part, on whether we give Mr. Hauk credit for acceptance of responsibili ty, as the district court did. This Circuit has not decided whether adjustment foracceptance of responsibility is deemed to be judicial fact-finding for purposes of Booker ; however, the outcome of Mr. Hauk’s case does not depend on the answer to that question. With or without credit for acceptance of responsibility, th e judge-found facts violated Mr. Hauk’s Sixth Amendment rights, and they exposed himto a substantial increase in punishment. The effect of the judge-found facts was to increase the bottom of the applicable sentencing range by either 30 or 56 mont hs, depending on whether Mr.35

Hauk is credited with acceptance of responsibility. While these increases are not as large as the ten years the Supreme Court called “very serious”in Booker , 125 S.Ct. at 751, this is a substantial amount of priso n time. Cf. Dazey , 403 F.3d at 1179 (calling a 20-level enhancement based on judic ial fact finding “sizable”). Moreover, the district court sentenced Mr. Hauk at the bottom of the Guidelines range, which suggests that had the district court f ully considered the tenuous nature of the evidence supporting the enhancements, Mr. Hauk might not have received these two and a half to almost five additi onal years of incarceration. Cf. United States v. Lawrence , ___ F.3d ___, 2005 WL 906582 at *13 (10th Cir. Ap ril 20, 2005) (citing the district court’s imposition o f a sentence two months above the bottom of the Guidelines range as evidence thatconstitutional Bookererror had no effect on the defendant’s sentence). We the refore conclude that failing to correct the plain error in Mr. Hauk’s sentence woul d affect the integrity, fairness, or public reputation of judicial proceedings, and w e exercise our discretion to remand his case for resentencing. In doing so, we do not mean to suggest that the dis trict court ought to reach a different conclusion on remand, but only that, in light of Booker , it should have the opportunity to resentence Mr. Hauk under the ne w, non-mandatory Guidelines regime.36 V. For the reasons stated above, we conclude that the arresting officers had reasonable suspicion sufficient to justify the prot ective sweep. The district court’s denial of Mr. Hauk’s motion to suppress is therefor e AFFIRMED. Reviewing Mr. Hauk's claim of constitutional sentencing error und er Rule 52(b), we VACATE the sentence and REMAND for further proceedings consist ent with this opinion.No. 04-3113, United States v. Hauk

MURPHY , Circuit Judge, concurring in the judgment.

I concur in the judgment but write separately to express my dissent to the approach taken by the majority in Part IIA. Like t he majority, I question the constitutionality of the alleged policy of the Kans as City Police Department to conduct a sweep of every residence when executing a n arrest warrant. That issue, however, is not before this court because Hauk does not raise it on appeal. Neither does Hauk argue that the officers’ professional jud gment should be accorded something less than “due weight” because they acted pursuant to the alleged policy when they conducted the sweep. Although the majori ty purports to resolve both of these legal questions, it does so by engaging in fa ct-finding. Ultimately, however, the majority resolves this case without applying th e rules it adopts, rendering the entire discussion of the issue dicta. During the hearing on Mr. Hauk’s suppression motion , Detective Shomin testified that it was the policy of the Kansas City Police Department to routinely conduct a protective sweep when executing an arrestwarrant. When the district court ruled on the motion, however, it clearly and repeatedly stated that its ruling was not based on the alleged policy, [T]here [were] statements made to the court in rega rds to the evidence specifically as they related to Detective Shomin’s testimony in regards to whether or not there is some type of official orunofficial pattern or practice of the Kansas City, Kansas Police Departme nt when they-2-

execute their arrest warrant. I would tell you, Mr . Hauk and Mr. Harris, that is not the issue before the court in t his case . . . . So, the issue about this pattern and practice, this blanketexception is not before the court. The court is not going to rule o ne way or the other in regards to that pattern or practice legality. Consistent with these statements, the court resolve d the motion by concluding that the facts presented, together with the reasonable i nferences that could be drawn from those facts, provided justification for the pr otective sweep. Accordingly, the court made no finding that a policy or practice exists, let alon e a finding that the officers acted pursuant to any such policy. Hauk focuses his appellate argument on his positionthat no specific, articulable facts existed to support the protective sweep. The bulk of his argument is directed toward challenging the officers’ relian ce on the information contained in the anonymous tip which he asserts contains no p redictive information that could be corroborated. As the majority points out, he also includes one sentence in his appellate brief, arguing that the sweep was therefore improper because it was based solely on “‘generalizations by [the offic ers] about drug offenders, their use of weapons, and their use of other people.’” M ajority Opinion at 6-7 (quoting Appellant’s Br. at 13-14). He does notargue or provide any support for the position that the alleged policy is unconstitutiona l or that the professional judgment of the officers is not entitled to “due we ight” because the sweep was conducted pursuant to the alleged policy. See Phillips v. Calhoun , 956 F.2d 949,-3-

953-54 (10th Cir. 1992) (holding that an appellate argument must be supported by legal argument and authority). He, instead, makes the broader argument that the evidence obtained from the search should be suppres sed because “the search was based on the unparticularized suspicion and hunch t hat because the warrant was for a parole violation for a narcotics offense, som eone else might be present in the house.” Appellant Br. at 13. In resolving this appeal the majority first address es the propriety of the alleged “practice” testified to by Detective Shomin . Recognizing that the government did not base its argument on the alleged policy, the majority concludes that “[ i ] f the government were relying on the validity of the Kansas City policy to support this protective sweep, or if the subjective motivations of the officers in undertaking the sweep were controlling, we would th us have to reverse this conviction.” Majority Opinion at 9 (emphasis added ). It then proceeds to find both that a policy or practice actually exists and that “there is every reason to believe that the police engaged in the sweep of Mr. Hauk’s residence not because they believed they had reasonable suspicion of dang er, but because they were executing ‘general policy’ of conducting protective sweeps in the course of all arrests within a home.” Id . This appellate fact-finding is wholly inappropri ate and contrasts sharply with the approach taken by the di strict court which declined to make any factual findings with respect to the alleg ed practice. Armed with these-4-

findings, the majority then embarks on an analysis of the weight to be given the officers’ professional experience and judgment in l ight of their reliance on the alleged policy. Although the majority concludes th at the officers’ judgment is not entitled to “due weight,” it fails to articulate ex actly the weight it should be given. But this omission is of no consequence, since the m ajority then resolves the issue before this court without applying the new rule it needlessly crafts. Because I agree with the majority’s ultimate conclu sion, reached without any reliance on the dicta, that “the facts in this case supported each element required to justify a protective sweep,” I concur i n the judgment.