In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1148

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FERNELL A. STARNES,

Defendant-Appellant.

Appeal from the United States District Court for the 

Northern District of Illinois, Western Division.

No. 3:09-cr-50015-1 — Frederick J. Kapala, Judge.

ARGUED NOVEMBER 8, 2013 — DECIDED DECEMBER 23, 2013

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. Afterreceiving citizen complaints of

drug trafficking, the Rockford Police Department arranged an

undercover controlled purchase of crack cocaine from a lower

level apartment at 922 North Church Street in Rockford,

Illinois. Three days later, the police secured a warrant to 1

As we recite the facts in this case, it occurs to us that this is a good time 1

to remind the bar that judges, like most other people, prefer to read briefs

(continued...)
2 No. 13-1148

search “922 N. Church Street lower apartment, Rockford

Illinois.” The warrant described the premises to be searched as

a “two story, two-family dwelling, white with black trim,

located on the west side of street with the numbers ‘922’

appearing on the front of the residence with lower apartment

being located on the ground floor.” The lower apartment was

actually the lower level of a two-story house that had been

converted from a single family residence into a two-flat.

The police knew that they would be facing two obstacles

when they executed the search. The first was that mere hours

before the planned raid, a shooting occurred at the residence.

Police officers conducting raids assume that drug dealers are

armed (and the assumption is generally correct, as weapons

are a necessary tool of the drug trade. United States v. Gulley,

722 F.3d 901, 908 (7th Cir. 2013)), but the recent shooting

increased the risk that the weapons were loaded and ready and

the possessors of those weapons were agitated and on high

alert. The police officers also knew that two aggressive pit bulls

lived on the premises. 

 (...continued) 1

written in straightforward, plain language and not legalese. Beginning each

sentence with the word “that” or preceding each previously described

concept with the word “said,” and other oddities stereotypically associated

with lawyers, disrupts the flow of a brief and thus weakens its impact. The

same is true when a brief recites the facts by describing each witness’

testimony piecemeal rather than by telling a story chronologically. As

judges we are able to divorce the distracting text from the content in

evaluating a case, but the role of a prudent advocate is to make the court’s

job easier, not more difficult. There are many illuminating books on writing

effective briefs and every practitioner before this Court would be wise to

invest a few hours in reading one.
No. 13-1148 3

After knocking on the front door of the house and receiving

no response, investigators forced their way into the building.

The first officer to enter the house found himself in a small

foyer with two open doors. One door led to the first floor

apartment. The other door led to an initial set of ascending

stairs, four or five of which were visible before they turned at

a landing. The office immediately encountered a pit bull who

initially turned and ran away from the officer, through the

open door to the stairway, and up a few steps toward the

upper apartment, before altering course and charging toward

the officer. The officer shot and killed the dog on the first

landing and then proceeded up those same stairs to perform a

protective sweep of the upper apartment. As he ran through

the kitchen of the upper apartment, he noticed on the counter

various mixing bowls, several large chunks of an off-white

substance, some scales and rubber gloves. In the bedroom he

discovered the defendant, Fernell Starnes, and a woman in

bed. The officer detained Starnes and the woman and escorted

them downstairs. Other officers then left to seek a second

warrant to search the upstairs apartment, leaving one officer

behind at the bottom of the stairs to prevent anyone from

entering the apartment.

While some officers were seeking the second warrant, other

detectives searched the lower apartment (for which they

already had a warrant) and seized two semi-automatic rifles,

two loaded ammunition magazines, a loaded .45 caliber

semiautomatic hand gun, and drug trafficking paraphernalia.

After executing the search warrant on the second floor, the

officers seized Starnes’ photo identification cards, approxi-
4 No. 13-1148

mately 290 grams of cocaine, 72.5 grams of cocaine base,

$36,186 in cash, and more drug trafficking paraphernalia. 

The government charged Starnes with possession with

intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1),

possessing a firearm as a felon in violation of 18 U.S.C.

§ 922(g)(1) and possessing a firearm in furtherance of a drug

trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A).

Starnes moved to suppress the evidence seized from the

second floor after the execution of the second search warrant.

After an evidentiary hearing, the district court denied the

motion to suppress. Eventually Starnes entered a guilty plea

but reserved his right to challenge the denied motion. The

lower court sentenced Starnes to serve consecutive sentences

of 63 months on Count 1, and 60 months on Count 2. He now

challenges the district court’s ruling on the motion to suppress,

arguing that the evidence seized from the upper apartment

could not be considered because investigators initially entered

the apartment without a warrant or any other lawful reason to

enter.

We review de novo a district court's legal conclusion that

the police acted reasonably in performing a protective sweep.

United States v. Tapia, 610 F.3d 505, 510 (7th Cir. 2010). And we

review factual questions for clear error. United States v. Delgado,

701 F.3d 1161, 1164 (7th Cir. 2012). Questions about whether

the particular circumstances supported a warrantless search

often involve mixed questions of law and fact, which we

review de novo. Id.

Our analysis starts with the presumption that warrantless

searches and seizures withinahomeviolate the FourthAmend-
No. 13-1148 5

ment’s prohibition against unreasonable searches and seizures

unless they fall into one of the numerous exceptions, including

protective sweeps. Kentucky v. King, 131 S. Ct. 1849, 1856 (2011).

A protective sweep is a quick and limited search of premises

conducted to protect the safety of police officers or others.

Maryland v. Buie, 494 U.S. 325, 327 (1990). Under certain

circumstances such a sweep is permissible because legitimate

governmental interests outweigh an individual’s interest in the

protection of the Fourth Amendment. Id. at 331. In general, the

Fourth Amendment permits a protective sweep

if the searching officer possessed a reasonable belief

based on specific and articulable facts which, taken

together with the rational inferences from those

facts, reasonably warranted the officer in believing

that the area swept harbored an individual posing a

danger to the officer or others.

Id. at 327 (internal citations omitted); Tapia, 610 F.3d at 510, Leaf

v. Shelnutt, 400 F.3d 1070, 1086 (7th Cir. 2005). The sweep must

also be justified by more than a “mere inchoate and

unparticularized suspicion or hunch,” regarding the danger.

Buie, 494 U.S. at 332, Tapia, 610 F.3d at 510. The search must be

cursory, lasting no longer than is necessary to dispel the

reasonable suspicion of danger. Buie, 494 U.S. at 335–36; Tapia,

610 F.3d at 510. It must also be limited to a cursory visual

inspection of places where a person might be hiding. Buie, 494

U.S. at 327; Tapia, 610 F.3d at 510.

The inquiry is an exceptionally fact-intensive one in which

we must analyze myriad factors including, among other

considerations, the configuration of the dwelling, the general
6 No. 13-1148

surroundings, and the opportunities for ambush. United States

v. Burrows, 48 F.3d 1011, 1016 (7th Cir. 1995). An ambush in a

confined setting of unknown configuration is just such a

situation in which an officer might need to perform a protective sweep. Buie, 494 U.S. at 333, Tapia, 610 F.3d at 511.

In this case there were many other substantial, particularized factors that would allow a reasonable officer to conclude

that he, his fellow officers, or another bystander might face

danger. First, the officers had reliable information that drugs

were being sold from the lower unit of the house and that a

shooting had occurred on the premises just a few hours prior.

The officers had also been informed that there were two

aggressive pit bulls on the premises and that only one had

been subdued. The doors to both the second floor and first

floor apartments were open, and the two apartments had been

carved out of a former single family home. In fact, it appeared

to some of the officers as though the home might be being used

as one unit (and indeed, it turns out that it was). Moreover, the

police could not have known for certain whether there were

other points of access between the two units, such as a back

staircase or a fire escape, and whether, therefore, a dangerous

dog or person might be moving between the two units. In fact,

the aggressive dog initially ran toward the upstairs apartment

indicating that the dog might be protecting someone on the

upstairs floor. Finally, because one of the detectives was forced

to fire multiple shots at an attacking dog immediately after

entering the house, the officers knew that any occupants

quickly would have been alerted to their presence by the

gunfire. 
No. 13-1148 7

Furthermore, the search itself appears to have been short,

cursory, and limited to only those places that a person might

be hiding. See Buie, 494 U.S. at 335–36. The sweeping officer ran

through the apartment looking briefly into the bathroom, the

kitchen, and the bedroom. He did not need to open any

cabinets or drawers or touch anything to see the suspicious

looking white substance and drug-selling paraphernalia on the

kitchen counter. Once the police discovered Starnes and his

companion, they secured and removed them immediately and

vacated the upper unit. In the meantime, all of the police

officers remained outside of the second-floor apartment until

the court issued the warrant. One police officer was stationed

at the landing of the ascending stairs to ensure that no one

entered.

This case is the fraternal twin of our decision in Tapia, 610

F.3d at 505. In that case, the Rockford police approached the

residence of a drug dealer and convicted felon armed with a

warrant to arrest, but not search. Upon arriving at the house,

the police noticed another gang member’s vehicle parked in

the driveway. After a few minutes of knocking on the front

door, a police officer stationed at another location outside the

house noticed that someone had just exited the basement.

Moments later, having walked out of the basement stairwell

and through the living room, the defendant, Tapia, opened the

front door. The police arrested Tapia and performed a protective sweep of the rest of the residence, including the basement

where Tapia had been, and discovered a gun. Just as the police

did here, the Rockford police returned with a search warrant

to conduct a complete search of the house. Due to the discovery of the gun, the government charged Tapia with being a
8 No. 13-1148

felon in possession of a firearm. Tapia, like Starnes, moved to

suppress the evidence of the gun, arguing that the protective

sweep of the basement was unreasonable. Id. at 507–08.

Just as is the case here, the holding in Tapia was very much

fact-dependent. The court concluded that the officers had

reason to believe that other gang members could be present at

the house and pose a threat to officers. The conclusion was

supported by the following facts: Tapia was the leader of a

gang and on parole for a 2005 unlawful use of weapons

conviction; he was living in the basement of the residence with

other gang members; Tapia’s gang and rival gang members

had recently been shooting at each other on nearby streets;

there was a Lincoln Navigator in the driveway which the

police thought belonged to a fellow gang member and was

large enough to hold five or six people; Tapia emerged from

the basement. The court concluded that the officers had reason

to believe that armed gang members could be in the basement

and therefore might pose a threat to the police.

The Tapia court specifically rejected the defendant’s

argument that the officers could have adequately protected

themselves simply by guarding the basement door. Similarly,

in this case the district court determined that there was good

reason to believe that securing the door to the second floor

apartment without doing a protective sweep may not have

been effective and could have subjected the officers to ambush.

In Tapia we relied heavily on anotherfact-intensive finding

in the seminal case of Buie. In Buie, two men—one wearing a

red running suit—committed an armed robbery. The officers

eventually secured an arrest warrant for Buie and after
No. 13-1148 9

confirming that he was home, entered the house to arrest him.

Once inside, several officers fanned out through the first and

second floors. One officer stood at the top of the basement

stairs and orderedanyone hiding there to come out. Eventually

Buie emerged and was arrested. A second officer entered the

basement and performed a protective sweep to ensure that no

one remained hidden. While there, he noticed a red running

suit in plain sight on a stack of clothing. Recognizing the risk

of ambush, the Supreme Court announced the holding that

carries the day today:

The Fourth Amendment permits a properly limited

protective sweep in conjunction with an in-home

arrest when the searching officer possesses a reasonable belief based on specific and articulable facts

that the area to be swept harbors an individual

posing a danger to those on the arrest scene. 

Buie, 494 U.S. at 337.

Starnes argues that Buie and Tapia can be distinguished as

they both addressed protective sweeps incident to an arrest in

a home rather than the execution of search warrant. The

philosophy behind a protective sweep, however, remains the

same regardless of how the officers arrived in the home. When

officers enter the residence of a criminal suspect and have

reason to believe that a particular area might harbor an

individual (or as in this case, an individual and an animal) who

poses a dangertothe officers or others, the Fourth Amendment

permits a quick and limited protective sweep. As the Supreme

Court reasoned, officers who are in a criminal suspect’s home

face the disadvantage of being on an adversary’s turf and
10 No. 13-1148

subject to ambush. Thus the constitutionality of a protective

sweep does not depend on whether that sweep is incidental to

a search warrant, an arrest warrant, or a consensual search. See

e.g. Leaf, 400 F.3d at 1087. See also, United States v. Werra, 638

F.3d 326, 350-351 (1st Cir. 2011) (stating that a protective sweep

is proper whether an arrest warrant, a search warrant, or

exigent circumstances prompt the agent’s entry); United States

v. Caraballo, 595 F.3d 1214, 1224 -1225 (11th Cir. 2010) (holding

that once legally on board a boat due to probable cause and

Florida marine law, marine officers could perform a protective

sweep); United States v. Gould, 364 F.3d 578, 593 (5th Cir. 2004)

(allowing protective sweep pursuant to consent entry) (abrogated on other grounds by Kentucky v. King, 131 S. Ct. 1849, 1861

(2011)); United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001)

(approving protective sweep by officer left behind while

warrant was sought after officers initially entered with

consent); United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir.

1993) (permitting protective sweep pursuant to consent entry);

United States v. Patrick, 959 F.2d 991, 996–97 (D.C. Cir.1992)

(upholding a protective search where police were lawfully on

premises pursuant to consent) (abrogated on other grounds by

Apprendi v. New Jersey, 530 U.S. 466 (2000)). What matters are

the specific facts that would give a reasonable officer, who is

lawfully inside a home, a “reasonable belief based on specific

and articulable facts which, taken together with the rational

inferences from those facts, reasonably warrant[] the officer in

believing that the area swept harbored an individual posing a

danger to the officer or others.” Buie, 494 U.S. at 327 (internal

citations omitted). 
No. 13-1148 11

Starnes’ arguments about inconsistencies in the detectives’

description of the protective sweep and its rationale are

irrelevant. As long as the officer had a reasonable belief of the

danger, based on specific articulable facts, any inconsistencies

in his reporting do not matter. See Id. at 327. As we noted

above, a bevy of facts supports the conclusion that such a

sweep was reasonable and prudent. In any event, the district

court found credible the detective’s explanation that he swept

the upper apartment for potential threats and that the search

constituted a protective sweep irrespective of the fact that his

report did not use this precise term. We give special deference

to the district court’s determinations of credibility.United States

v. Groves, 530 F.3d 506, 510 (7th Cir. 2008). We see no reason to

upset the district court’s rational and well-reasoned findings

on these facts if such findings were indeed necessary.

We continue to recognize that “the sweep is a device that

can easily be perverted to achieve ends other than those

acknowledged as legitimate in Buie.” Burrows, 48 F.3d at 1017.

This opinion neither expands nor contracts law enforcement’s

right to perform such a sweep. Regardless of the context of an

officer’s entry into a home, the same concise standard announced in Buie stands: 

The Fourth Amendment permits a properly limited

protective sweep in conjunction with an in-home

arrest when the searching officer possesses a reasonable belief based on specific and articulable facts

that the area to be swept harbors an individual

posing a danger to those on the arrest scene.

Buie, 494 U.S. at 337.
12 No. 13-1148

The judgment of the district court is affirmed.