On May 8, 2025, the Fifth Circuit Court of Appeals decided the United States v. August[i], which serves as an excellent review of the law related to protective sweeps. The relevant facts of August, taken directly from the case, are as follows:
On May 14, 2022, the Lake Charles Police Department received a call about gunshots on the 700 block of N. Lyons Street, a residential street in Lake Charles, Louisiana. Officers Baccigalopi, Bernat, and Rainwater responded. Baccigalopi arrived on scene and spoke with the caller, who pointed him to the blue home where August resided.
Baccigalopi, Bernat, and Rainwater descended on the home at virtually the same time. Baccigalopi and Bernat approached August’s home through the next-door neighbor’s property, and they encountered August standing in his backyard behind a chain-link fence. The backyard was cluttered with junk, which officers believed gave August ample cover to hide a weapon. A top-down convertible was parked in his driveway with the driver-side door left ajar and music playing from the radio. Mattresses were stacked against the main door to the home, preventing it from being used as an entrance.
Baccigalopi spoke with August while still standing on the neighbor’s side of the fence. He asked August whether he had heard gunshots or had any “weapons or anything” on the property. August responded “no” to both of Baccigalopi’s questions. Meanwhile, Rainwater had gotten held up in a conversation with the next-door neighbor, who explained to Rainwater that she had “just now” seen August firing a handgun in his backyard.1 The neighbor also stated that August discharged firearms in his backyard frequently, and that stray bullets had previously struck her home. Rainwater promptly informed his colleagues that August might have a firearm.2
Baccigalopi—still on the neighbor’s side of the fence—then ordered August to walk backward with his hands on his head toward the fence. August was patted down, and no weapon was found on his person. He remained near the fence this entire time. Rainwater and Bernat entered the backyard and began conducting a protective sweep. Bernat testified that they entered the backyard “mostly” for safety reasons: “There was a lot of junk behind the house . . . So if he did have a firearm within close proximity, I’d rather be on that side.” During the protective sweep, Bernat discovered shell casings on the ground and a large sign riddled with bullet holes. He returned to where August was standing and handcuffed him. August continued to contend that there was no gun on the property.
The government maintains that officers next decided to seek a warrant authorizing them to search the property. The officers knew they would have to remain at the scene while they waited for the warrant application’s approval. Given that none of them had been able to locate the alleged firearm—and having little reason to trust August’s claim that the house was empty—police decided to conduct a protective sweep of the home. But the only accessible door was locked. August told police that his sister had the only set of keys, which contradicted his previous statement that he had been taking a bath before police arrived.
Baccigalopi walked over to the vehicle parked in the driveway and removed August’s keys from the ignition. While doing so, Baccigalopi noticed a baggie of methamphetamine in plain view near the center console. August was secured in the back of Baccigalopi’s police vehicle. Officers then used the keys that were retrieved from the car to enter a side door of the house and conduct a protective sweep. The sweep lasted approximately three minutes, during which the officers located a magazine clip for a firearm. Baccigalopi and Bernat returned to the convertible. Bernat found a gray plastic bag containing ammunition inside the side pocket of the open driver’s door. Bernat stated that the ammunition itself was not in plain view.
Satisfied that they were not in imminent danger by remaining on the scene, police formally requested a search warrant for August’s entire property. They remained on the scene until after they received and executed the warrant. Their search of August’s property ultimately yielded a .22 caliber rifle, .410 shotgun, and ammunition.[ii]
August was subsequently charged with being a felon in possession of a firearm under federal law. He filed a motion to suppress, arguing the shell casings in the backyard, the magazine in the residence, the ammunition in the car, and the firearms found in the residence should be suppressed for violations of the Fourth Amendment. The district court denied the motion and August pleaded guilty with the right to appeal the denial of his motion to suppress. He then filed an appeal with the Fifth Circuit Court of Appeals.
On appeal the court first examined the protective sweep of the yard and the residence.
The court explained the legal principles related to protective sweeps and stated
Under the protective sweep doctrine, police may conduct, without a warrant, “a quick and limited search of premises for the safety of the agents and others present at the scene.” United States v. Mendez, 431 F.3d 420, 428 (5th Cir. 2005) (citation omitted). A protective sweep is lawful if:
the government agents have a legitimate law enforcement purpose for being in the house [or curtilage]; (2) the sweep is supported by a reasonable, articulable suspicion that the area to be swept harbors an individual posing a danger to those on the scene; (3) the sweep is no more than a cursory inspection of those spaces where a person may be found; and (4) the sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and lasts no longer than the police are justified in remaining on the premises.
Id. (internal quotation marks and citation omitted). See also United States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th Cir. 1992) (explaining that exigent circumstances provide officers a legitimate law enforcement purpose to conduct a warrantless entry when “officers reasonably fear for their safety, where firearms are present, or where there is risk of a criminal suspect’s escaping or fear of destruction of evidence“) (citations omitted).[iii]
The court stated that, when evaluating whether a protective sweep was lawful, they must consider whether a reasonable and prudent man at the scene of the search, standing in the shoes of the involved officers, would believe the search was warranted. The court stated that, if “reasonable minds could differ on whether the search was warranted,” the court will not second-guess the judgment of the officers on the scene regarding the risks of the situation.
The Protective Sweep of the Backyard
August argued that the protective sweep of the backyard violated the Fourth Amendment because the officers jumped over his fence and did not stay near him during the search. He pointed to no caselaw to support his argument.
After a review of the facts of the protective sweep of the backyard, the court held that August failed to establish the protective sweep of his backyard was unlawful. First, August was not arrested until after the sweep was completed. Second, the yard’s cluttered condition could easily hide other people or firearms. Third, there was a vehicle present that appeared recently occupied. Fourth, August’s inconsistent statements regarding the situation heightened the officers’ concern for their safety. Lastly, August’s status as a felon further justified their concern for their safety.
Thus, the court held that these factors, in totality, supported the officers’ concern for safety, and therefore, the protective sweep was lawful. Therefore, the district court correctly denied the motion to suppress the shell casings found in the backyard.
The Protective Sweep of the Residence
August argued that the protective sweep of his residence violated the Fourth Amendment because officers were “safely outside the home for almost seven minutes” before they swept the residence. He argued that there was no reason for the officers to believe evidence would be destroyed or someone could be in the home that would pose a threat to officers.
The court of appeals explained that
Case law tends to reflect that exigent circumstances are unlikely to exist if there is “no articulable reason to believe that someone else might be inside [the] residence.” Id. at 295. See also United States v. Carter, 360 F.3d 1235, 1241 (10th Cir. 2004)[iv]
The court also explained
A protective sweep of a suspect’s house may be made . . . if the arresting officers ‘have reasonable grounds to believe that there are other persons present inside who might present a security risk. (quoting United States v. Merritt, 882 F.2d 916, 921 (5th Cir. 1989)[v]
The court then examined the relevant facts of the case to determine if a reasonable officer could believe someone may be in the residence and pose a risk to officers. First, two neighbors heard gunshots and one stated she saw someone on the property firing a gun. Second, there were spent shell casings around the backyard. Third, August’s credibility was lacking. Fourth, there was a car parked in the driveway that looked as if it just arrived. Fifth, most of the doors to enter the house were barricaded. Sixth, August’s demeanor was “nervous” and “evasive”, which the court stated also supported a protective sweep considering that officers knew firearms were present on the property.
The court also noted that it did not make a difference that the police chose to enter the residence after arresting August. Further, the court stated
[T]here is an analogous interest . . . in [officers] taking steps to assure themselves that the house in which a suspect . . . has just been arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.” Any remaining doubt as to the reasonableness of the officers’ concerns is dispelled by the deferential review that police are entitled to in this context. See Silva, 865 F.3d at 242 (protective sweep standard) (where “reasonable minds could differ on . . . whether the sweep was warranted,” a court will not “second-guess the judgment of experienced law enforcement officers”); Henry, 853 F.3d at 756[vi]
Therefore, in light of the facts discussed and principles above, the court stated that August failed to show that officers violated his rights under the Fourth Amendment by conducting a protective sweep of the residence, and as such, the district court did not err in refusing to suppress the magazine located in the residence.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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1 Rainwater had assisted in executing a search warrant at August’s home a year earlier when police located a .22 revolver in the home.
2 This information was enough to give the officers reasonable suspicion that a crime had been committed. La. Rev. Stat. 14:94 prohibits the discharge of a firearm in a residential neighborhood. See United States v. LeJeune, 2021 U.S. Dist. LEXIS 165479, 2021 WL 3926154, at *2 (W.D. La. 2021). And the officers were all aware soon after arriving at the scene that August was a felon barred from possessing a firearm.
[i] No. 24-30457 (5th Cir. May 8, 2025)
[ii] Id. at 1-5
[iii] Id. at 6-7 (emphasis added)
[iv] Id. at 12 (emphasis added)
[v] Id. (emphasis added)
[vi] Id. at 13-14 (emphasis added)
