from the United States District Court for the District of
Kansas (D.C. No. 2:14-CR-20103-CM-1)
Clinton W. Lee, Lansing, Kansas, for Defendant-Appellant.
A. Brown, Assistant United States Attorney (Thomas E. Beall,
United States Attorney, with him on the briefs), District of
Kansas, Topeka, Kansas, for Plaintiff-Appellee.
BACHARACH, McKAY, and MURPHY, Circuit Judges.
BACHARACH, Circuit Judge.
appeal involves a protective sweep of a house incident to the
arrest of one of its occupants, Mr. Stephen Bagley. Our
precedents limit protective sweeps to the area immediately
adjacent to the place of arrest in the absence of specific,
articulable information that a dangerous person remains in
the house. In this case, law enforcement officials conducted
a protective sweep of the entire house without any
information suggesting that someone else remained inside.
protective sweep yielded items that allowed law enforcement
officials to obtain a search warrant for the entire house.
Executing this warrant, officials found incriminating
evidence. Mr. Bagley moved to suppress the evidence, arguing
that the protective sweep had gone too far. The district
court denied the motion. We reverse because the protective
sweep was not permissible under the Fourth Amendment.
Law enforcement officials conducted a protective
Bagley is a convicted felon who was named in an arrest
warrant for violating the terms of his supervised release. To
execute this arrest warrant, Deputy U.S. Marshals obtained a
search warrant allowing entry into a house solely to locate
and arrest Mr. Bagley. Deputy marshals came to the house to
execute the warrant. When they arrived, Mr. Bagley was
allegedly in the southeast bedroom. He eventually surrendered
and was handcuffed near the front door.
deputy marshals then conducted a protective sweep of the
entire house. In the southeast bedroom, deputy marshals found
two rounds of ammunition and a substance appearing to be
marijuana. These finds led the deputy marshals to obtain a
second search warrant. Unlike the first search warrant, the
second warrant permitted officers to search the entire house
for firearms, ammunition, and controlled substances.
Executing the second warrant, deputy marshals found a
Mr. Bagley unsuccessfully moved to suppress evidence of the
The protective sweep went beyond constitutional limits under
address the ruling on the motion to suppress, we start with
the first search warrant. This warrant permitted the officers
to search only for Mr. Bagley and to arrest him. Once he
surrendered, the officers would ordinarily have lacked any
authority to continue searching. See Maryland v.
Buie, 494 U.S. 325, 333 (1990). But the government
invokes the exception for protective sweeps. See Fishbein
v. City of Glenwood Springs, 469 F.3d 957, 961 (10th
Cir. 2006) (stating that "[t]he protective-sweep
doctrine" provides "an exception to the Fourth
Amendment's warrant requirement").
this exception, the government argues that when the deputy
marshals arrested Mr. Bagley, they were permitted to conduct
a protective sweep. "A protective sweep is not a full
search, but rather a quick, cursory inspection of the
premises, permitted when police officers reasonably believe,
based on specific and articulable facts, that the area to be
swept harbors an individual posing danger to those on the
arrest scene." United States v. Soria,
959 F.2d 855, 857 (10th Cir. 1992). Even if a protective
sweep were permissible, however, the deputy marshals went
beyond the limits imposed by our precedents.
Maryland v. Buie identifies two situations for a ...