On July 26, 2021, the Eighth Circuit Court of Appeals decided the United States v. Thompson[i], which serves as an excellent review of the law related to protective sweeps of residences. The relevant facts of Thompson are as follows:
Tyreese Thompson, a convicted felon, was suspected of being involved in a gunfight in 2014 and stealing guns from a pawn shop in 2016. At the time of the 2016 burglary, Thompson was also the subject of a felony arrest warrant for a separate robbery. A confidential informant told the ATF that Thompson was at a house in Kansas City, Missouri that police thought belonged to his girlfriend. Police went there to arrest him.
Officers knocked on the door, announced themselves, and called Thompson’s name. They saw window blinds move and heard sounds of people walking and moving things inside the house. Officers continued to knock and call for six to eight minutes. George Richards finally answered the door with an aggressive dog. Officers asked Richards to restrain the dog, and he dragged it away, leaving the door open. An officer then saw Thompson peek out from inside the house, so he ordered him to show his hands. Thompson instead retreated around a corner, but eventually, he came out and surrendered. When he was arrested and put in a police car, officers saw dirt and spider webs on his arms, shirt, and the back of his head.
Richards then emerged. Police asked him twice whether anyone else was inside, but he did not answer right away. Then he said, “Nobody else that I know of.” D. Ct. Dkt. 49 at 4. Officers were not sure of this because of his reluctance to answer, his odd response, the information suggesting Thompson’s girlfriend lived there, the sounds from inside, and the long delay in answering the door. Concerned about “some sort of an ambush,” D. Ct. Dkt. 48 at 30, they told Richards that they would do a protective sweep of the home. He did not object.
During the ten-minute sweep, police looked into a back bedroom closet and noticed an attic access panel in the ceiling and a scuff mark on the wall. Worried that someone went into the attic, an officer guarded the closet until the house was cleared. Then they opened the attic access panel and saw disturbed cobwebs—and guns.
Richards claimed that he either owned or rented the house, but denied knowing about the guns. He agreed to a search of his house. Richards said that Thompson was dropped off at the house the day before and did not live there. Richards also said that Thompson spent the night and slept in the room with the attic access. When officers went into the attic again, they recovered four guns.[ii]
Thompson was indicted on various federal firearms violations. He filed a motion to suppress and the district court denied the motion. Thompson was subsequently convicted at trial and later appealed the denial of his motion to suppress.
On appeal, Thompson argued that the protective sweep of the residence and the search of the attic both violated the Fourth Amendment.
Issue One: Did the protective sweep of the residence violate the Fourth Amendment?
The court first noted the relevant legal principles and stated
Officers doing a protective sweep must “possess 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.” Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990) (citation omitted) (cleaned up). “Buie authorizes protective sweeps for unknown individuals in a house who may pose a threat to officers as they effectuate an arrest[,]” but “Buie does not allow a protective sweep for weapons or contraband.” United States v. Waldner, 425 F.3d 514, 517 (8th Cir. 2005). Even so, officers may seize any “immediately apparent” contraband that is “in plain view” while performing the sweep. Alatorre, 863 F.3d at 815-16 (citation omitted).[iii]
Regarding the first issue, the court held that the protective sweep did not violate the Fourth Amendment, as the officers had a reasonable belief the residence harbored a person or persons that posed a danger to the officers. The court explained the reasons for their holding. First, the court noted that Thompson was suspected of stealing several guns in a burglary, committing a robbery and being involved in a gunfight. Second, after the officers announced their presence, they heard movement in the residence but nobody answered the door for several minutes. The court noted that the movement could have been preparation for an attack. Third, officers thought the house belonged to Thompson’s girlfriend; however, they did not see her. Fourth, Richards, the person who answered the door gave a very ambiguous answer when asked if anyone else was home. Particularly, after hesitation, he stated, “nobody else” that he “knew of” was in the residence. Lastly, Thompson was covered in dust and cobwebs, which suggested that he had been in a dusty place such as the basement or attic.
In light of the above facts, the court of appeals stated
These facts support the reasonable belief that “someone else could be inside posing a danger to [officers] during or following the arrest.[iv]
Issue Two: Did officers exceed the permissible scope of the protective sweep when they checked the attic?
During the protective sweep, the officers checked the bedroom. They observed a closet and they looked in the closet. In the closet, they observed there was access to the attic and a scuff mark on the wall. Since Thompson had dust and cobwebs on his person, they decided to check the attic. The court stated
Officers reasonably believed that the home “harbored an individual” hiding in a place containing dust and cobwebs like an attic, basement, or closet who could “pos[e] a danger to the officer or others” during and after the arrest. Buie, 494 U.S. at 327. Extending the sweep to the closet and then to the attic after seeing the scuff mark was reasonable. Sweeping a space that requires a boost or ladder to access, like an attic, is at the outer boundary of the protective sweep doctrine; but we think the officers’ conduct here was [reasonable].[v]
However, the court of appeals also noted that even if the officers exceeded the permissible scope of the protective sweep by entering the attic, the search of the attic was still within the Fourth Amendment because the officers had gotten Richards’ consent. Even assuming Thompson had a reasonable expectation of privacy at Richards’ residence as an overnight guest, the court of appeals noted
A host possesses “authority to consent to a search of his own home, including the guest bedroom where [the houseguest] spent the evening.”). Richards had actual authority to give officers permission to search the bedroom, closet, and attic.[vi]
Since Thompson did not argue that Richards’ consent was not freely and voluntarily given, that was not an issue before the court. As such, Richards’ consent also allowed the officers to search the attic.
Therefore, the court of appeals affirmed the denial of the motion to suppress.
[i] No. 20-1228 (8th Cir. Decided July 26, 2021)
[ii] Id. at 1-3
[iii] Id. at 6 (emphasis added)
[iv] Id. at 7
[v] Id. at 8