United States v. Hernandez-Mieses , 931 F.3d 134 ( 2019 )

United States Court of Appeals
For the First Circuit
Nos. 18-1661, 18-1664
UNITED STATES OF AMERICA,
Appellee,
v.
SANDY HERNANDEZ-MIESES,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Rafael F. Castro Lang for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief, for appellee.
July 31, 2019
LIPEZ, Circuit Judge. Sandy Hernandez-Mieses appeals
from the district court's partial denial of his motion to suppress
evidence seized from his home on the day of his arrest on drug and
money laundering charges in Cataño, Puerto Rico. Specifically, he
challenges the district court's conclusion that federal law
enforcement agents validly relied on exceptions to the warrant
requirement when they searched his home, a cargo van inside his
garage, and a minivan parked in his driveway. He also asserts
more broadly that the entire operation was tainted by the agents'
unlawful intention to execute a warrantless search even before
they entered his home to execute the arrest warrant.
After careful review, we affirm the district court's
determination that a gun, cellphones, and cash were lawfully seized
from the first floor, and we reject Hernandez-Mieses's contention
that the entire operation was tainted. However, because we cannot
determine on this record that the cellphones on the second floor
and the drugs in the cargo van were lawfully seized, we vacate the
district court's denial of suppression as to those items and remand
for further findings concerning the duration and scope of the
purported protective sweep. We also vacate and remand as to the
application of the automobile exception to the cargo van so that
the district court can reconsider the issue based on its
conclusions regarding the sweep. Finally, we vacate the district
court's order as to the items seized from the minivan and remand
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so that the district court can determine in the first instance
whether the minivan was within the curtilage of Hernandez-Mieses's
home.
I.
We recount the facts as found by the district court,
consistent with record support, with the addition of undisputed
facts drawn from the suppression hearing. See United States v.
Dancy, 640 F.3d 455, 458 (1st Cir. 2011). Hernandez-Mieses was
charged, along with five co-defendants, in a seven-count
indictment alleging a conspiracy to import and distribute cocaine.
These charges arose from "Operation Beach Break," a maritime drug
smuggling investigation by the Caribbean Corridor Strike Force of
Homeland Security Investigations ("HSI").
On November 1, 2016, federal agents executed an arrest warrant
for Hernandez-Mieses at his home outside San Juan. Among the
agents was Ricardo Nazario, a special agent with HSI for
approximately sixteen years and a group supervisor with the Strike
Force for the previous seven. Nazario had previously surveilled
Hernandez-Mieses at this home and knew that he used a wheelchair.
Before executing the arrest warrant, Nazario briefed the other
agents on the high probability that they might encounter weapons,
narcotics, and cash inside the house. Approximately twenty agents
with ten vehicles were involved in executing the arrest warrant,
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and they were accompanied by Honzo, a Customs and Border Protection
dog trained to detect both concealed humans and narcotics.
The agents arrived at what Nazario described as an
"average"-sized, two-story house at around 5:45 AM. Upon arrival,
Nazario noticed that the first floor lights were on and observed
shadows of several individuals through the frosted-glass front
windows. Nazario was not expecting that people other than
Hernandez-Mieses would be in the house, or that anybody would be
awake at the time. He approached the frosted-glass front door,
accompanied by another special agent, and announced himself as the
police. He then saw the shadow of a person approach the front
door and lock it from the inside. Nazario and the other agent
broke the frosted glass in two places and looked through the
openings. From the photographs admitted into evidence at the
suppression hearing and Nazario's testimony, it appears that the
first floor was essentially an open space with four modes of
egress: the front door; sliding doors leading to the back terrace;
a side door leading from the kitchen to the pool area and garage;
and stairs leading to the second floor.
Nazario saw Hernandez-Mieses in his wheelchair near the
dining table with two other individuals. Nazario reached through
one of the holes in the door, unlocked it, and chased the two men,
who fled through the back terrace doors and jumped the property's
rear fence. During this initial brief pursuit, other agents
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entered the house behind Nazario and handcuffed Hernandez-Mieses.
All told, approximately ten agents entered the house and ten
remained outside to secure the perimeter, which was accomplished
shortly after the arrest.
Having lost the fleeing individuals,1 Nazario returned from
the terrace and observed a Glock handgun on the kitchen counter,
approximately ten feet from where Hernandez-Mieses was sitting and
close to the staircase leading to the second floor. The agents
observed four cellphones and a bag with cash on the dining table.2
Nazario also observed that the door from the kitchen to the
adjacent swimming pool area and garage was open.
Nazario then ordered what he characterized as a protective
sweep of the house based on his expressed concern that there could
be people hiding who might pose a threat to the agents.3 Honzo
accompanied the agents during the sweep. After taking five to
1 Nazario directed two agents who were securing the perimeter
to pursue the men who fled. One man, Yonathan Jimenez-Diaz, was
apprehended a few blocks away, while the other, Oniel Lajara-De La
Cruz, remained a fugitive at the time of the suppression hearing.
2The relationship between the bag and the cash is not entirely
clear from the record -- that is, it is unclear whether the cash
was outside the bag or inside the bag but nonetheless visible.
Regardless, Hernandez-Mieses has not contended that the agents had
to open or otherwise manipulate the bag to observe the cash.
3 Nazario and the government referred to a "security sweep"
throughout the suppression hearing, but we will use the more common
"protective sweep," as the parties do in their briefing.
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seven minutes to sweep the first floor, including a bathroom, the
agents proceeded to the second floor, where they swept two
bedrooms, two bathrooms, and a master bedroom. In one of the
bedrooms, Honzo alerted to a bag in front of the bed containing
four kilograms of cocaine. Nazario also observed four cellphones
on the bed in that room. In the master bedroom, Honzo "alerted to
and opened" a shoebox inside the closet, which contained $34,000
in cash.
The agents proceeded through the open door off the kitchen to
the garage, where they saw a cargo van.4 Nazario touched the hood
of the cargo van, which was hot; noticed that the tires were
covered with sand and mud and that there was water dripping from
the cargo area; and smelled saltwater and fuel.
Nazario, who was accompanied by five other agents, said he
opened the cargo van's unlocked rear doors to "[s]earch[] for
people hiding." Inside, Nazario observed more than forty wet,
sandy bales of what he took to be narcotics.5 The agents also
4 The frosted-glass garage door opening onto the driveway was
closed.
5 The bales were marked with different logos (for example,
"Harley Davidson Motorcycles," "NBA," and a smiley face) that
Nazario recognized, based on his experience, as the type of marking
drug traffickers use to identify drug deliveries. The district
court found, and the record supports, that Honzo alerted at the
bales after the van was opened. At some point, a field test
confirmed that the bales contained approximately 1,700 kilograms
of cocaine.
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looked in a closet next to the van. According to Nazario, the
sweep was completed once the agents swept the garage, approximately
twenty-two minutes after they arrived at the house.6
The agents then called a government attorney, who told them
that they could perform a full search of the house. Before doing
so, however, Nazario approached the minivan parked in the driveway
in front of the garage door, which he had previously seen
Hernandez-Mieses driving. Nazario observed sand on the tires and
interior carpet, and he touched the hood, ascertaining that it was
hot. Using keys located on top of the dining table, the agents
unlocked the minivan and searched the interior. Among other items,
they found a loaded Glock in the compartment between the two front
seats, a paper bag full of money in front of that compartment, and
a wallet in the passenger door containing identification documents
for Lajara-De La Cruz.7 The agents then performed a comprehensive
6
The district court supportably found, based on call logs in
the record, that "between 5:45 a.m. and 6:07 a.m. (22 minutes),
the law enforcement agents arrived at the scene, arrested
Hernandez, [and] performed [the] protective sweep." United States
v. Hernandez-Mieses, 257 F. Supp. 3d 165, 174 n.8 (D.P.R. 2017).
Nazario indicated that the agents also swept the perimeter areas
of the house (such as the pool area and back terrace), but it is
unclear when this was done. Nazario did not suggest that the
agents who swept the house's interior also swept the perimeter.
7
At some point, agents also searched another vehicle parked
in front of the house, but nothing was seized. That vehicle was
registered to Hernandez-Mieses. The minivan was registered to his
wife, and the cargo van was registered to a third party.
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search of the house and seized multiple incriminating items,
including cash, a firearm, and ammunition.
After his arrest and the search, Hernandez-Mieses was charged
in a second indictment along with Jimenez-Diaz and Lajara-De La
Cruz. Hernandez-Mieses filed a motion to suppress all evidence
seized from his house on the day of his arrest. After a hearing,
at which agent Nazario was the sole witness, the district court
suppressed the drugs and cash found by Honzo on the second floor
and all evidence seized during the warrantless search of the house
conducted after the agents called the government attorney. But it
declined to suppress the gun and cash found on the first floor,
the cellphones found in the bedroom on the second floor, the drugs
found in the cargo van, and the items found in the minivan. After
the district court denied his motion for reconsideration, which
focused on the cargo van, Hernandez-Mieses entered a joint straight
plea to both indictments, reserving his right to appeal the
district court's suppression order. He was sentenced to a total
of 180 months of imprisonment on the two indictments. This timely
appeal followed.
II.
When reviewing a district court's denial of a motion to
suppress, we ordinarily assess the district court's findings of
fact for clear error and its conclusions of law de novo. United
States v. Ackies, 918 F.3d 190, 197 (1st Cir. 2019). If the
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evidence at issue was seized during a warrantless search, "it is
the government's burden to demonstrate the legitimacy of the
search." United States v. Winston, 444 F.3d 115, 123-24 (1st Cir.
2006).
The Fourth Amendment protects all persons "against
unreasonable search and seizures." U.S. Const. amend. IV. Because
"physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed," Payton v. New York,
445 U.S. 573, 585 (1980)(internal quotation marks omitted), "a
warrantless search of a private residence is presumptively
unreasonable unless one of a few well-delineated exceptions
applies," United States v. Infante, 701 F.3d 386, 392 (1st Cir.
2012). Hernandez-Mieses concedes that the agents possessed a valid
arrest warrant, which entitled them to enter his home to arrest
him. See Payton, 445 U.S. at 603. But he contends that the
agents' actions were tainted because they also intended to perform
a warrantless search of his home. Moreover, regardless of the
agents' intent, he contends that their actions did not fit any
exception to the warrant requirement and were therefore unlawful;
in particular, he argues that the agents were not effectuating a
lawful protective sweep when they spotted the cellphones in the
second floor bedroom and the drugs in the cargo van. Finally, he
contends that the agents had no lawful basis for searching the
minivan in the driveway.
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A. Agents' Intention to Perform a Warrantless Search
Hernandez-Mieses contends that the agents' actions were
tainted from the start by a pre-existing intention to perform a
warrantless search of his entire home before they had any basis
for doing so. Because he did not raise this argument before the
district court, it may well be deemed waived. See, e.g., United
States v. Reyes-Rivas, 909 F.3d 466, 470 n.2 (1st Cir. 2018). But
even if it was not forfeited or waived, the argument is plainly
without merit. As a matter of law, "[a] police officer's
subjective motive, even if improper, cannot sour an objectively
reasonable search." Spencer v. Roche, 659 F.3d 142, 149 (1st Cir.
2011). We also reject the factual premise of Hernandez-Mieses's
argument. To support his contention that the agents harbored a
pre-existing intention to perform a warrantless search, Hernandez-
Mieses points to Nazario's briefing of the other agents, during
which Nazario told them that "there was a high probability of
finding weapons, narcotics, and currency in the house." But, as
Nazario explained during his testimony, this statement can
reasonably be understood as a notice or reminder to his colleagues
that they were likely to "encounter those items [weapons,
narcotics, and currency] inside the house." Indeed, the agents
did encounter a weapon and cash in plain view while arresting
Hernandez-Mieses. We discern no suggestion of an intention to
perform a warrantless search from Nazario's briefing.
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Hernandez-Mieses also points to the agents' use of Honzo.
Specifically, he asserts that they brought Honzo into the house as
soon as they entered to arrest Hernandez-Mieses, suggesting that
they intended to use the dog to effect a warrantless search from
the start. But again, Hernandez-Mieses misreads the facts.
Nazario's testimony is clear that although Honzo "tagged along"
with the agents when they went to the house to execute the arrest
warrant, the dog did not enter until Nazario ordered the sweep.8
Accordingly, we reject Hernandez-Mieses's argument both as a
matter of law and of fact.
B. Seizure of Cash, Cellphones, and Gun from First Floor (Plain
View)
The district court determined that the government lawfully
seized the cash and four cellphones from the dining table and the
gun from the kitchen counter pursuant to the "plain view" doctrine.
That doctrine "permits the warrantless seizure of an item if the
officer is lawfully present in a position from which the item is
clearly visible, there is probable cause to seize the item, and
the officer has a lawful right of access to the item itself."
United States v. Gamache, 792 F.3d 194, 199 (1st Cir. 2015). We
8The record is not entirely clear as to whether Honzo entered
the house at the start of the sweep or entered when the agents
proceeded to the second floor. In any event, this distinction is
immaterial to our analysis.
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review a district court's conclusion that the plain view doctrine
applies for clear error. See id.Hernandez-Mieses has offered no developed argument that the
district court erred in applying the plain view doctrine, and any
such argument is therefore waived. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990). What is more, even absent waiver,
this contention of error would be unavailing. By virtue of the
arrest warrant, the agents were lawfully in a position from which
the cash, cellphones, and gun "were easily visible to the naked
eye," United States v. Sanchez, 612 F.3d 1, 5 (1st Cir. 2010), and
the incriminating nature of those items as common tools of the
drug trade was apparent. See Minnesota v. Dickerson, 508 U.S.
366, 375 (1993); see also United States v. Martinez-Molina, 64
F.3d 719, 728 (1st Cir. 1995) (recognizing that cellphones are
known tools of the drug trade). We therefore reject
Hernandez-Mieses's contention that the cash, cellphones, and gun
should be suppressed.
C. Seizure of Cellphones from Second Floor and Drugs from Cargo
Van (Protective Sweep)
The district court determined that the agents lawfully seized
the four cellphones from the upstairs bedroom and the drugs from
the cargo van because they were found during a lawful protective
sweep. Hernandez-Mieses does not contest that the cellphones were
in plain view to anyone in the upstairs bedroom, or that the drug
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bales were in plain view once the agents opened the cargo van.9
Rather, he contends that the agents did not have a right to enter
the upstairs bedroom or open the cargo van because they were not
executing a protective sweep when they accessed those locations.
We review de novo the question of whether a warrantless search was
a permissible protective sweep. Winston, 444 F.3d at 118.
1. Applicable Law
The Supreme Court has described a "protective sweep" as "a
quick and limited search of premises," usually incident to an
arrest, that is "conducted to protect the safety of police officers
or others" at the scene. Maryland v. Buie, 494 U.S. 325, 327
(1990). Such a search is "narrowly confined to a cursory visual
inspection of those places in which a person might be hiding."
Id.10 For law enforcement to justify a protective sweep, the
officers must have a "reasonable suspicion of danger," that is,
"there must be articulable facts which, taken together with the
rational inferences from those facts, would warrant a reasonably
9
See United States v. Banks, 884 F.3d 998, 1015-16 (10th Cir.
2018) ("Generally, officers can seize any incriminating items that
they find in plain view during a protective sweep.").
10
The Court in Buie also noted that, "as a precautionary
matter and without probable cause or reasonable suspicion,"
officers are permitted to "look in closets and other spaces
immediately adjoining the place of arrest from which an attack
could be immediately launched." 494 U.S. at 334. That type of
warrantless search is not at issue in this case because the
cellphones on the second floor and the drugs in the cargo van were
not found in immediate proximity to Hernandez-Mieses.
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prudent officer in believing that the area to be swept harbors an
individual posing a danger to those on the arrest scene." Id. at
334. "[A] mere 'inchoate and unparticularized suspicion or hunch'"
that someone is hiding who could pose a danger to the arresting
officers is not enough to support a protective sweep. Id. at 332(quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). But the reasonable
suspicion standard "is considerably less demanding than the level
of proof required to support a finding of probable cause."
Winston, 444 F.3d at 118. And we are ordinarily hesitant to
second-guess an officer's determination that a protective sweep is
necessary: "[T]he experienced perceptions of law enforcement
agents deserve deference and constitute a factor in [the]
reasonable suspicion analysis." Id. at 119.
Reasonable suspicion, however, is just part of the analysis.
A protective sweep also must be limited in scope to "a cursory
visual inspection of those places in which a person might be
hiding." Buie, 494 U.S. at 327; see also United States v.
Nascimento, 491 F.3d 25, 49 (1st Cir. 2007) (assuming that a
protective sweep would not allow looking inside a cabinet "too
small to accommodate a person"). And, of crucial importance in
this case, a protective sweep must be limited in duration and
"last[] no longer than is necessary to dispel the reasonable
suspicion of danger and in any event no longer than it takes to
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complete the arrest and depart the premises." Buie, 494 U.S. at
335-36.
The sweep in Buie, the case in which the Supreme Court first
articulated the modern protective sweep doctrine, illustrates the
type of cursory search that the doctrine contemplates. The Supreme
Court described Buie's arrest and the ensuing sweep as follows:
Once inside [the house to execute the arrest warrant],
the officers fanned out through the first and second
floors. Corporal James Rozar announced that he would
"freeze" the basement so that no one could come up and
surprise the officers. With his service revolver drawn,
Rozar twice shouted into the basement, ordering anyone
down there to come out . . . . Eventually, a pair of
hands appeared around the bottom of the stairwell
and Buie emerged from the basement. He was arrested,
searched, and handcuffed by Rozar. Thereafter, [another
officer] entered the basement "in case there was someone
else" down there. He noticed a red running suit lying
in plain view on a stack of clothing and seized it.
Buie, 494 U.S. at 328 (citation omitted).11 Thus, the sweep in
Buie was demonstrably a cursory scan of the area from which the
defendant had just emerged after initially hiding from the officers
who had come to arrest him. See Cursory, Merriam-Webster
Dictionary, https://www.merriamwebster.com/dictionary/cursory
(defining "cursory" as "rapidly and often superficially performed
or produced").
11
The Court in Buie remanded for the state court to apply the
newly enunciated standard for protective sweeps to the basement
search at issue.
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Consistent with Buie, courts have typically approved only
short sweeps when expressly considering duration in cases
involving the sweep of a home. See United States v. Alatorre, 863
F.3d 810, 815 (8th Cir. 2017) (protective sweep of four rooms on
one floor of residence "lasted two minutes"); United States v.
Silva, 865 F.3d 238, 243 (5th Cir. 2017) (sweep of trailer home
lasted less than a minute); United States v. Contreras, 820 F.3d
255, 269 (7th Cir. 2016) (protective sweep of house "lasted less
than a minute"); United States v. Henderson, 748 F.3d 788, 793
(7th Cir. 2014) (protective sweep of house lasted "no longer than
five minutes"); United States v. Laudermilt, 677 F.3d 605, 608–09
(4th Cir. 2012) (sweep of two-story house "from start to finish,
lasted about five minutes"); United States v. Hauk, 412 F.3d 1179,
1184 (10th Cir. 2005) (sweep of residence "lasted approximately
five to ten minutes"); United States v. Flowers, 424 Fed. App'x
302, 303 (5th Cir. 2011) (protective sweep of two-story house and
garage "lasted no longer than five minutes"); see also Fishbein ex
rel. Fishbein v. City of Glenwood Springs, Colo., 469 F.3d 957,
959 (10th Cir. 2006) (noting, in the context of rejecting a civil
suit challenge to a protective sweep, that "estimates regarding
how long the officers were in the home range from thirty seconds
to slightly less than five minutes"); but see Gomez v. Feissner,
474 Fed. App'x 53, 56 (3d Cir. 2012) (holding that officer was
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entitled to qualified immunity from claim that protective sweep
lasting five to fifteen minutes was unlawful).
While we do not suggest that a purported sweep of a certain
duration should necessarily be deemed invalid per se, the length
of the sweep obviously is an important factor in assessing its
lawfulness. Courts have recognized that a short sweep is an
indication that the search was truly cursory in nature. See, e.g.,
United States v. Burrows, 48 F.3d 1011, 1017 (7th Cir. 1995) ("The
record supports the determination that the search of the four
bedrooms and linen closet, which required the officers to force
four locked doors, took no more than five minutes, an interval
compatible with the officers' legitimate purpose."); United States
v. Hogan, 38 F.3d 1148, 1150 (10th Cir. 1994) ("[I]t appears from
the officer's testimony that the protective sweep could have truly
been cursory and ended . . . a few minutes after the arrest.");
see also United States v. Lesane, 685 Fed. App'x 705, 722 (11th
Cir. 2017) (noting that protective sweep of single-story house
"took no longer than three or four minutes, lending support to the
conclusion that the sweep was cursory in nature").
2. Application of the Law to the Facts
Reviewing the facts known to the agents, we readily conclude
that a reasonable officer would have held a reasonable suspicion
of danger supporting a protective sweep. See United States v.
Delgado-Pérez, 867 F.3d 244, 252 (1st Cir. 2017) (explaining that
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we consider whether "the facts available at the moment of the
. . . search [would support] a man of reasonable caution in the
belief that the action taken was appropriate").
At the time the officers arrested Hernandez-Mieses, they knew
the following: they had arrived at the house at 5:45 AM and found
multiple people up and about; when they approached the front door,
they saw the shadows of several people through frosted glass; when
they announced themselves, a person inside locked the door; when
they entered, they saw three people, but observed four cellphones
on the table; they observed a gun; finally, they saw a staircase
close to the counter where the gun was found and an open door
leading from the kitchen to the pool area and garage. In short,
there was a wealth of information supporting a reasonable suspicion
that an armed person could be hidden on the first floor, or could
have fled to the second floor or out the open door off the kitchen,
between the time the agents announced themselves and the time they
entered the house. This case is therefore distinguishable from
those in which we have determined a purported protective sweep was
invalid because (a) there was a complete lack of objective facts
supporting a reasonable suspicion that a dangerous person could be
hiding in the area searched, see, e.g., United States v.
Serrano-Acevedo, 892 F.3d 454, 459-60 (1st Cir. 2018);
Delgado-Pérez, 867 F.3d at 253-54, or (b) the facts supported a
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contrary belief that the area searched was in fact empty, see
United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003).
However, as we have noted, reasonable suspicion is just part
of the analysis. On this record, we have concerns that the search
of the second floor and the cargo van may not have been consistent
with a protective sweep's limited duration and scope. See Buie,
494 U.S. at 327, 335-36. For example, if the sweep took the major
part of the twenty-two minutes from when the agents arrived at the
house until they called the government attorney, the sweep would
have been longer than those typically approved in comparable
situations. See supra Section II.C.1. Indeed, the sweep of the
first floor alone -- five to seven minutes -- matched or exceeded
the length of some sweeps of entire residences. See id. Further,
the problematic implication of the sweep's lengthy duration is
compounded by the large number of agents on the scene. Nazario
testified that at least ten officers entered the house, and that,
when he opened the cargo van, at least five officers were present.
It stands to reason that the large number of agents conducting the
sweep should have resulted in a search of shorter duration.
The scope of the sweep also prompts concerns in the sense
that the agents' actions in this case suggest that this may not
have been the cursory sweep required by the Supreme Court. The
agents twice paused to inspect evidence in areas where no person
could hide and that were not in plain view. In particular, in
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suppressing the drugs the agents found in one of the upstairs
bedrooms, the district court concluded that the cocaine bricks
were not in plain view, meaning that the agents had to have
manipulated or otherwise searched the bag containing the cocaine
bricks to observe them. See United States v. Hernandez-Mieses,
257 F. Supp. 3d 165, 180-81 (D.P.R. 2017). This conduct suggests
that the agents were searching for contraband rather than for
dangerous persons.
All that said, however, there are crucial gaps in the record
relating to the protective sweep. In particular, the district
court did not make an explicit finding as to how long it took for
the agents to enter the house and arrest Hernandez-Mieses before
commencing the sweep.12 The longer it took for them to commence
the sweep, the shorter the sweep and the more likely it was
consistent with the durational component of Buie. The district
court also did not make explicit findings about how many agents
conducted the sweep -- that is, we know ten agents were in the
house and that five agents were present when Nazario opened the
12 Hernandez-Mieses does not argue that there was an undue
delay between when the agents entered his home and the commencement
of the sweep. See, e.g., United States v. Dabrezil, 603 Fed. App'x
756, 760 (11th Cir. 2015) (considering whether it was objectively
reasonable for an officer arriving on the scene to commence a sweep
seven to twenty-five minutes after other officers had entered the
apartment).
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cargo van, but it is unclear how many agents swept the two floors
of the house.
In light of these important factual gaps in the record on the
protective sweep issue, we conclude that a remand is appropriate.
Ordinarily, we would not remand so that a party that failed to
carry its burden (here, the government) would get a second chance
to do so. But the circumstances here are unusual. Although
Hernandez-Mieses clearly challenged the legality of the sweep
before the district court, he focused on his contention that the
agents lacked reasonable suspicion that a dangerous person or
persons were hiding on the scene. By not focusing on the sweep's
duration and scope, important elements of the protective sweep
analysis, Hernandez-Mieses bears some responsibility for the lack
of focus by the government and the district court on these aspects
of the sweep. Therefore, we think it appropriate, in these
circumstances, to vacate the district court's determination that
the sweep was lawful and remand for the court to develop the
factual record as to the sweep's duration and scope, with a
particular focus on how much of the twenty-two-minute window
between when the agents arrived at the house and when they called
the government attorney was taken up by the sweep. Based on its
further factual findings, the district court should then determine
whether the government has met its burden of demonstrating the
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sweep's legality.13 If the government can demonstrate that the
sweep was consistent with Buie, the agents clearly were entitled
to look in the back of the cargo van, given the district court's
unchallenged finding that the vehicle was "big enough to harbor
several individuals." Hernandez-Mieses, 257 F. Supp. 3d at 183;
see Buie, 494 U.S. at 327 (defining a protective sweep as "a
cursory visual inspection of those places in which a person might
be hiding" (emphasis added)).
D. Seizure of Drugs from Cargo Van (Automobile Exception)
As an alternative basis for seizing the drugs from the cargo
van, apart from the protective sweep, the government argues, and
the district court determined, that the drugs were also lawfully
seized pursuant to the automobile exception to the warrant
requirement.14 The automobile exception permits a warrantless
search of a vehicle if there is probable cause to believe that
evidence of a crime or contraband will be found in the vehicle.
See United States v. Kennedy, 881 F.3d 14, 18 (1st Cir. 2018).
The district court treated the automobile exception issue as
13To be clear, we are not retaining jurisdiction of this
case. Rather, upon remand, the district court should make its
findings and draw its legal conclusions, and the parties can then
decide if a new appeal is warranted.
14The district court further determined that the search of
the cargo van was warranted by "exigent circumstances" arising
from the "hot pursuit" of the two fleeing men. See
Hernandez-Mieses, 257 F. Supp. 3d at 186. The government does not
pursue this theory on appeal.
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entirely distinct from the protective sweep. After the district
court issued its suppression order, however, the Supreme Court
issued a decision that reveals the flaw in that approach.
In Collins v. Virginia, the Court rejected a warrantless
search of a motorcycle parked in a partially enclosed section of
the defendant's driveway that the officer justified on the basis
of the automobile exception. 138 S. Ct. 1663, 1671 (2018). The
Court held that the automobile exception by itself "does not afford
the necessary lawful right of access to search a vehicle parked
within a home or its curtilage because it does not justify an
intrusion on a person's separate and substantial Fourth Amendment
interest in his home and curtilage." Id. at 1672. In other words,
if an officer wants to search a vehicle located within the
curtilage of a home based on the automobile exception, the officer
must first have a lawful basis for accessing the vehicle. See id.("Just as an officer must have a lawful right of access to any
contraband he discovers in plain view in order to seize it without
a warrant[,] . . . so, too, an officer must have a lawful right of
access to a vehicle in order to search it pursuant to the
automobile exception.").
The district court did not specifically consider whether the
cargo van was within the curtilage, but there is no doubt that it
was. It was parked in the attached garage, and attached garages
are typically part of a home's curtilage. See United States v.
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Dunn, 480 U.S. 294, 307-08 (1987) ("[T]he general rule is that
the [c]urtilage includes all outbuildings used in connection with
a residence, such as garages . . . connected with and in close
vicinity of the residence." (second alteration in original)
(internal quotation marks omitted)). Thus, to rely on the
automobile exception to search the cargo van, the agents needed a
lawful basis for entering the garage.
As described above, the agents' putative reason for entering
the garage was to conduct the protective sweep. Therefore, the
agents' recourse to the automobile exception depends on the
legality of the sweep. We therefore vacate the district court's
judgment as to the application of the automobile exception to the
cargo van. On remand, the district court should reassess the
automobile exception issue in relation to the cargo van depending
on the court's determination regarding the protective sweep.15 We
note, however, that it would be unnecessary for the government to
pursue this alternative theory on remand. If the district court
determines that the protective sweep was lawful, as described
above, the agents had a basis for entering the garage and for
15The government has not argued that the search of the cargo
van pursuant to the automobile exception was permissible because
the agents were acting in good-faith reliance on pre-Collins
precedent. We make no judgment on the viability of any such
argument.
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opening the cargo van. If the district court determines that the
protective sweep was not lawful, the agents did not have any basis
for entering the garage, and the automobile exception is
unavailable.
E. Seizure of Evidence from Minivan (Automobile Exception)
The district court also denied suppression of the items seized
from the minivan parked in the driveway based on the automobile
exception to the warrant requirement. Again, in light of Collins,
we face the question of whether the minivan was within the
curtilage, and if so, whether the agents had lawful access to the
vehicle.
It is well established that where there is some doubt about
whether an area is part of the home's curtilage, a court must
consider
[1] the proximity of the area claimed to be curtilage to
the home, [2] whether the area is included within an
enclosure surrounding the home, [3] the nature of the
uses to which the area is put, and [4] the steps taken
by the resident to protect the area from observation by
people passing by.
Dunn, 480 U.S. at 301; see United States v. Owens, 917 F.3d 26,
34-35 (1st Cir. 2019), petition for certiorari pending, No. 19-21
(filed July 3, 2019) (noting that the Dunn factors should be
applied to determine whether a particular driveway is part of the
curtilage). The Court did not make any findings regarding the
Dunn factors, and we are loath to make the fact-specific
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determination in the first instance. Although there are
photographs of the driveway in the record that establish its
proximity to the home and the fact that it was not enclosed, the
record is not developed as to Dunn factors 3 (nature of the uses)
and 4 (steps taken by the resident to protect the area from
observation). The fact that the minivan "was parked in an open
space and could be seen from the street," Hernandez-Mieses, 257 F.
Supp. 3d at 174, is not dispositive, see Collins, 138 S. Ct. at
1675 ("So long as it is curtilage, a parking patio . . . into which
an officer can see from the street is no less entitled to
protection from trespass and a warrantless search than a fully
enclosed garage.").
We therefore vacate and remand as to the search of the minivan
so that the district court can determine whether the vehicle was
within the curtilage. If it was, the district court should
determine whether the agents had any lawful basis -- other than a
protective sweep -- for accessing the vehicle.16 See Collins, 138
S. Ct. at 1672. If the district court determines that the minivan
was not within the curtilage, the court should determine whether
the agents had probable cause to search the vehicle pursuant to
16Nazario testified that the purported protective sweep
concluded with the search of the garage, and the government did
not argue that the minivan was accessed or searched pursuant to a
protective sweep.
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the automobile exception without relying on any unlawfully
obtained information.
III.
For the foregoing reasons, we affirm in part and vacate
and remand in part the district court's suppression order. The
district court correctly determined that the gun, cellphones, and
cash found on the first floor were lawfully seized. However, we
vacate and remand as to the cellphones on the second floor and the
drugs in the cargo van so that the district court can make further
findings as to the duration and scope of the purported protective
sweep. We also vacate and remand as to the application of the
automobile exception to the cargo van so that the district court
can reconsider the issue based on its conclusions regarding the
sweep. Finally, we vacate and remand as to the items seized from
the minivan so that the district court can determine whether that
vehicle was within the curtilage.
So ordered.
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