CAAF decided the Army case of United States v. Keefauver, 74 M.J. 230, No. 15-0029/AR (CAAFlog case page) (link to slip op.), on Friday, June 12, 2015. Extensively analyzing the requirements for a protective sweep, CAAF finds that the Government did not even attempt to meet those requirements in this case, and so the court holds that the sweep of the appellant’s on-base home was invalid. CAAF reverses the decision of the Army CCA and remands the case for further proceedings.

Judge Ryan writes for a unanimous court.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of two specifications of violating a general regulation by wrongfully possessing drug paraphernalia and unregistered weapons on-post, one specification of wrongful possession of marijuana, and one specification of child endangerment in violation of Articles 92, 112a, and 134. He was sentenced to confinement for four years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In a published decision that I discussed in this post, the Army CCA affirmed the findings and sentence.

The case involves a controlled delivery of a package sent through the U.S. Mail that was suspected (and eventually discovered) to contain marijuana. Government agents obtained verbal authorization to conduct a controlled delivery of the package, but the appellant’s on-base residence was vacant. So the agents left the package by the front door, established surveillance, and waited. Eventually, the appellant’s stepson returned home and brought the package inside, and the agents followed immediately behind, seizing the package and apprehending the boy. Then, despite the immediate seizure of the suspicious package and the fact that the home was empty before the boy arrived, the agents conducted a search of the property, discovering a significant quantity of drug-related materials.

The appellant moved to suppress the evidence seized during the search. The military judge denied the appellant’s motion, ruling in part that the search was a proper protective sweep. Specifically, the judge found that the:

agents could reasonably have believed “an individual or individuals who posed a danger to the agents may have been hiding in the residence” given the quantity of marijuana present and the inference that residents were engaging in drug distribution, as “[i]t is common knowledge that drug trafficking involves violence, including the use of weapons.” The military judge [also] concluded that [the stepson]’s hostile response to the agents’ announced intent to enter the house and conduct a search supported this belief.

Slip op. at 6-7. The appellant was convicted. On review, the CCA affirmed the judge, finding the sweep proper and also applying the doctrine of inevitable discovery. CAAF then granted review of a single issue:

Whether the Army Court erred in finding that the protective sweep was appropriate in total.

Judge Ryan’s opinion for a unanimous CAAF dissects the law of protective sweeps and the agents’ rationale for the search, concluding that while a sweep in a situation like the one in this case is permissible, there was insufficient justification for a sweep in this particular case.

Judge Ryan begins by explaining that:

“In [Maryland v. Buie, 494 U.S. 325, 334 (1990)], the Supreme Court created an exception to the Fourth Amendment for a “protective sweep,” which is “a quick and limited search of premises, incident to arrest and conducted to protect the safety of police officers or others.” 494 U.S. at 327. Buie  acknowledged two types of protective sweeps. In the first type of sweep, which may be conducted “as a precautionary matter and without probable cause or reasonable suspicion,” agents may search only “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched” during or after an arrest. Id. at 334. The second, more extensive Buie exception permits agents to make a protective sweep of areas beyond those immediately adjoining the place of arrest where “articulable facts . . . taken together with the rational inferences from those facts . . . would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id.

Slip op. at 9. Noting that Buie was limited to “the context of arrest only,” slip op. at 10, Judge Ryan leads CAAF to join the majority of federal circuits in expanding this rational beyond arrest situations:

We agree with the majority of federal circuits that, as with an arrest, executing a search warrant in a home can present the dangers upon which the rationale of Buie was based, as it, too, places agents on the occupant’s “turf,” at a disadvantage, and is an adjunct to a “serious step,” since probable cause to conduct a search for evidence has been established and may result in arrest and prosecution. Buie, 494 U.S. at 333.

Slip op. at 12. As strange as a sweep (read: search) incident to a search may sound, Judge Ryan’s opinion clearly contemplates a range of situations where “agents entering a home lawfully for an objective other than arrest may make a protective sweep so long as the Buie criteria are met.” Slip op. at 10.

Interestingly, Judge Ryan’s opinion does not cite or discuss Military Rule of Evidence 314(g)(3), which states:

(3) Protective Sweep for Other Persons.

(A) Area of Potential Immediate Attack. Apprehending officials may, incident to apprehension, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of apprehension from which an attack could be immediately launched.

(B) Wider Protective Sweep. When an apprehension takes place at a location in which another person might be present who might endanger the apprehending officials or others in the area of the apprehension, a search incident to arrest may lawfully include a reasonable examination of those spaces where a person might be found. Such a reasonable examination is lawful under subdivision (g) if the apprehending official has a reasonable suspicion based on specific and articulable facts that the area to be examined harbors an individual posing a danger to those in the area of the apprehension.

This M.R.E. only authorizes a sweep incident to an apprehension. Further, it’s unclear that CAAF needed to decide the issue of whether a protective sweep is permissible in situations other than arrests, as there was in fact an apprehension (of the stepson) in this case.

Nevertheless, CAAF finds a sweep was constitutionally permissible in this case. However, that finding “does not answer the altogether different question whether any facts supported the belief that there were people other than [the stepson] present in the home in this case and, if so, that they presented a danger to the agents.” Slip op. at 12-13. CAAF answers that question in the negative.

Judge Ryan details the two requirements for a protective sweep:

A protective sweep of the home requires specific, articulable facts and rational inferences from those facts supporting two beliefs: (1) that the areas to be swept harbor one or more individuals and (2) that the individual or individuals pose a danger to the agents or others. Id. at 334.

Slip op. at 15. Addressing these requirements, Judge Ryan explains that “the Government did not attempt to prove that the searching officer held either such belief, nor did it present facts and inferences that would objectively support either such belief.” Slip op. at 15. CAAF specifically focuses on the first requirement – belief that there was another person in the home – finding that “given the absence of facts supporting the antecedent belief . . . the second prong of Buie . . . necessarily fails.” Slip op. at 17. The analysis is fact-intensive and case-specific, but Judge Ryan specifically notes (with disapproval) a general, drug-related conclusion of the military judge:

To suggest, as the military judge did, that the mere presence of drugs justifies a protective sweep of the entire home would effectively eviscerate the exception to the Fourth Amendment contemplated by Buie, which was based entirely on the danger to agents. We decline to create so broad an exception to the Fourth Amendment.

Slip op. at 17 (citation omitted).

The opinion ends by remanding the case to the Army CCA with a warning:

The ACCA erred in affirming the holding of the military judge with respect to the protective sweep. As our holding eliminates the basis on which the ACCA found probable cause existed to conduct the MWD search of the house after the sweep, any review of the inevitable discovery doctrine must be undertaken without respect to the fruits of the sweep. Although we did not grant, and thus do not decide, the question of the application of the inevitable discovery doctrine to the remaining evidence, we stress that “the inevitable discovery doctrine cannot rescue evidence obtained via an unlawful search simply because probable cause existed to obtain a warrant when the government presents no evidence that the police would have obtained a warrant.” United States v. Wicks, 73 M.J. 93, 103 (C.A.A.F. 2014) (internal quotation marks omitted).

Slip op. at 20.

A collateral issue in this case was whether the Army CCA erred in considering evidence presented during the trial itself (after the military judge ruled on the motion to suppress) to support its conclusion that the military judge did not err in denying the motion. I considered this issue in my argument preview and concluded that a judge’s conclusion about the validity of a protective sweep is a question of law reviewed de novo, and so it doesn’t matter if the CCA searched the record for facts to support the judge’s findings. Judge Ryan’s opinion confirms both of my conclusions, explaining that “whether facts in toto justify a protective sweep is a question of law,” slip op. at 8, and that:

We did not grant the issue, and do not decide the question, whether it was improper for the ACCA to consider evidence that agents smelled marijuana in the house, which evidence was not before the military judge when he ruled on the motion to exclude evidence from the protective sweep. Resolution of that question does not affect the outcome in this case.

Slip op. at 5 n.3.

Case Links:
ACCA opinion (73 M.J. 846)
Blog post: Army CCA affirms a protective sweep
Appellant’s brief
Appellee’s (Government) brief
Amicus brief in support of Appellant (law students)
Amicus brief in support of Appellee (law students)
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

3 Responses to “Opinion Analysis: Insufficient justification for a protective sweep in United States v. Keefauver, No. 15-0029/AR”

  1. Tami (a/k/a Princess Leia) says:

    This is a good decision, glad to see CAAF reining the Government in.  And the magistrate definitely didn’t help.  Interesting that ACCA listed the agents and magistrate by initials only, but CAA called them out by full names.

  2. RKincaid3 (RK3PO) says:

    Excellent!  It is both amazing and gratifying to see the military appeals courts actually apply precedent in a way that is both consistent with the law and the 4th Amendment (limiting gocernment action–finally–and UNANIMOUSLY, no less!!!) instead of trying to contort themselves, their rationale and logic into any possible method of supporting a commander’s decision to prosecute. 
    Rules–and the words in those rules–mean something.  Lmits on government action serve a legitimate purpose, both in and out of the military–and this is an excellent reminder that the military’s “rough justice” can still be–and must be–regulated even if it means reigning-in the inevitable wayward commander and their ever creative and (too eager to please) legal staff–or the military judges in the trial and intermediate appellate courts.
    This one goes in the win column for individual liberty–and a restrained, limited government–even in the military.

  3. slyjackalope says:

    Verbal search authorizations are stupid in all but the most exigent of circumstances.  For years I’ve told CID and the MPs at the numerous training sessions I conducted with them not to do this.  I’m still amazed that any PTMM would give a verbal search authorization, especially in this case where it wasn’t even the middle of the night but rather the PTMM gave the authorization at 1100 hrs on a Thursday.
    If it’s the middle of the night and the PTMM doesn’t have a computer available, it’s not that difficult to require the agent or MP to (1) have the affidavit and search authorization written prior to the call, (2) read both verbatim to the PTMM, (3) record the call, and (4) ensure the PTMM receives all documentation and the recording the following morning.  How hard is this!?!?