from the United States District Court for the District of
Kansas (D.C. No. 2:15-CR-20080-JAR-1)
T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public
Defender, and Tim Burdick, Assistant Federal Public Defender,
with him on the briefs), Office of the Federal Public
Defender, Kansas City, Kansas, for Defendant-Appellant.
T. Ward, Special Assistant United States Attorney (Thomas E.
Beall, United States Attorney, with him on the brief), Office
of the United States Attorney, Kansas City, Kansas, for
TYMKOVICH, Chief Judge, MATHESON and MORITZ, Circuit Judges.
MORITZ, Circuit Judge.
seven law enforcement officers arrested Stephen Nelson in a
private residence, one officer continued searching the
residence and found two firearms. The government attributed
the firearms to Nelson, and he was indicted for possession of
a firearm by a felon. See 18 U.S.C. §
922(g)(1). Nelson moved to suppress the firearms, arguing
that the officers violated the Fourth Amendment by continuing
to search the residence after arresting him. The district
court denied Nelson's motion, concluding that the
post-arrest search was a valid protective sweep because the
officers "could have reasonably believed that someone
other than [Nelson] was hiding in the house." R. vol. 1,
entered a conditional guilty plea, and he now appeals the
district court's order denying his suppression motion. We
vacate the denial based on our conclusion that the searching
officer had no basis to reasonably believe that an unknown,
dangerous person was hiding in the residence. Nevertheless,
we remand for the district court to determine, in the first
instance, whether the owner of the residence consented to the
Nelson was serving a term of supervised release, his
probation officer obtained an arrest warrant based on
Nelson's alleged failure to comply with several
conditions of that release. Although the probation officer
indicated that Nelson's whereabouts were unknown, the
United States Marshals Service learned that Nelson
occasionally stayed at a house owned by Antonio Bradley.
Nelson had a small child with Bradley's daughter, Allie,
who lived with her parents. Deputy Marshal Jovan Archuleta
asked Bradley to contact him if Nelson appeared at the
Bradley did exactly that. On May 2, 2015, he told Archuleta
that Nelson was in the Bradley residence and that the deputy
marshals could "go inside and search for" Nelson.
R. vol. 2, 36. Three deputy marshals-Chris Johnson, Bradley
Owens, and Michael Thibault (collectively, the
deputies)-formed a task force to execute the arrest warrant
with four Kansas City, Kansas police officers. The deputies
drove to the Bradley residence and knocked and announced at
the front door.
minute or so of knocking, Allie opened the door. When the
deputies informed Allie of their intent to arrest Nelson, she
responded that he was upstairs. Allie said that she would
retrieve Nelson herself and then attempted to shut the door
on the deputies. But Johnson prevented Allie from doing so,
and the deputies entered the residence.
Bradley residence has four levels. The deputies entered at
the third level, which consists of a living room, a dining
room, and a kitchen. The fourth level, where Allie asserted
Nelson was located, contains three bedrooms. The second level
consists of a family room and a garage. From there, a set of
stairs descends into a subbasement area-the first level.
entry, the deputies cleared the third level. The deputies
then shouted upstairs, instructing Nelson to show himself.
Meanwhile, Thibault and Owens escorted Allie to the second
level so that she could retrieve her child. After clearing
that level, Thibault and Owens moved to the top of the stairs
leading down to the first level. That's when Thibault saw
movement on the first level.
the top of the stairs, Thibault shouted commands for the
unidentified person to come out and show his hands. After ten
seconds of shouting, Nelson came around the corner with his
hands in the air. Thibault and Owens instructed Nelson to
walk up the stairs to the second level and placed him in
custody there. Owens then descended the stairs to search the
first level. There, he found two firearms underneath a pile
of clothes on a bed. Each of the Bradleys disavowed knowledge
and ownership of the firearms.
Nelson had two previous felony convictions, the government
charged him with possession of a firearm by a felon. Nelson
moved to suppress the firearms, arguing that the deputies
violated the Fourth Amendment by continuing to search the
residence after arresting him. In response, the government
made two arguments relevant on appeal: (1) Bradley, the owner
of the residence, consented to the search; and (2) Owens
lawfully searched the first level under the protective-sweep
doctrine set forth in Maryland v. Buie, 494 U.S. 325
Buie, the Court recognized two exceptions to the
general rule that police must obtain a warrant to search a
home. Under the first exception (Prong One) the police may,
in conjunction with an arrest in a home, "as a
precautionary matter and without probable cause or reasonable
suspicion, look in closets and other spaces immediately
adjoining the place of arrest from which an attack could be
immediately launched." Id. at 334. Under the
second exception (Prong Two), police may conduct a
"protective sweep" beyond areas
immediately adjoining the arrest if there are
"articulable facts which, taken together with the
rational inferences from those facts, would ...