United States v. Herbert Green ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2796
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United States of America
Plaintiff - Appellee
v.
Herbert G. Green
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: May 14, 2021
Filed: August 13, 2021
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Before SMITH, Chief Judge, SHEPHERD and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Herbert G. Green twice moved to suppress evidence of guns, ammunition, and
drug paraphernalia that the Kansas City police seized from his apartment. The
district court denied both motions. Green conditionally pled guilty to possessing
firearms in furtherance of a drug trafficking offense, see 18 U.S.C. § 924(c)(1)(A),
(c)(1)(A)(i), and was sentenced to 60 months of imprisonment. He now appeals.
Because we conclude that the record does not contain adequate findings of
fact for us to resolve Green’s appeal, we remand the case to the district court for the
limited purpose of making the supplemental findings of fact necessary to resolve
Green’s Fourth Amendment claims, while retaining jurisdiction.
I. Background
One morning in August 2017, Detective Antonio Garcia, who had twenty-two
years of experience on the police force, was working interdiction (i.e., intercepting
contraband) at a Federal Express sorting center. Something he had done several
thousand times before.
Under an agreement, FedEx allows the police to perform interdiction duties
only between when the packages arrive (around 6:00 a.m.) and when they leave for
delivery (around 8:00 a.m.). The agreement also states that officers may only seize
packages when a narcotics dog (“K9”) alerts to them. The K9s are not allowed near
the conveyor belt where the packages move through the facility. Officers must bring
flagged packages to their K9s. If the K9 does not alert to a package, the package
must be immediately returned to the conveyor belt. The interdiction team cannot
delay the delivery of any non-seized package.
On the morning in question, Detective Garcia began his interdiction duties
around 6:00 a.m. He soon noticed a large “moving” box with a return label from
Brownsville, Texas—“a source city for illegal narcotics.” The box’s seams were
glued, which in Detective Garcia’s seventeen years of interdiction experience
indicates illegal narcotics “100% of the time[.]” Detective Garcia also testified that
he looks at moving boxes “right away” because they are sturdy and thick, making
them well suited to contain large amounts of drugs.
Detective Garcia carried the box 200 feet to the back of the FedEx facility,
where his K9, Zina, immediately alerted to it. Zina is a certified narcotics dog and
is “very reliable,” according to Detective Garcia. Detective Garcia told FedEx about
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the box and Zina’s alert, filled out the necessary paperwork, and seized it. The entire
process from when Detective Garcia took the box off the conveyor belt until Zina
alerted took approximately three minutes. Had Zina not alerted, the box would have
been returned to the conveyor belt and delivered.
Officers obtained a state search warrant for the box. They also obtained a
state anticipatory warrant for the address where the box was to be delivered, which
allowed the police to enter the address to retrieve the box if it was taken inside. The
police then conducted a controlled delivery to the box’s mailing address. A detective
delivered the box to the door of the apartment, but no one was home. He left the
box at the door. Approximately eight minutes later, Green arrived at the apartment
while talking on the phone. Officers overheard him tell the person on the other end
of the call that “the box had arrived.” He then unlocked the apartment door, placed
the box inside, and left the apartment building.
Officers promptly arrested Green in the parking lot a few feet from his vehicle.
A tactical team then entered the apartment to ensure that they could safely execute
the search warrant. The tactical team immediately saw the box just inside the
doorway but proceeded to go through every room to look in any place that a person
could hide. They also looked in the kitchen trashcan, kitchen cabinets, and in a
shoebox located on top of Green’s bedroom dresser. During the sweep, which took
around ten minutes, the tactical team saw weapons and marijuana inside the
apartment. Despite seeing these items in plain view, the team did not seize anything.
Detective Garcia then entered the residence, performed a walk-through, and
opened the box. It contained a foam cooler, which in turn contained 24.4 pounds of
marijuana. Detective Garcia took the box, its contents, and Green’s cell phone back
to headquarters.
The officers next obtained a federal search warrant for the apartment. When
they executed the warrant, the officers recovered an AR-15 rifle from the bedroom
closet, a pistol, a fully loaded magazine, three other magazines, ammunition, a
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bullet-proof vest, a roll of heat-sealed bags, a digital scale, a hand-written ledger,
five baggies of powder substance, one vacuum sealed bag of marijuana buds, and a
shoe box with marijuana residue.
A grand jury indicted Green for attempting to possess a controlled substance
with intent to distribute, see 21 U.S.C. §§ 841(a)(1), (b)(1)(D), 846 (Count One),
possessing a firearm in furtherance of a drug trafficking crime, see 18 U.S.C.
§ 924(c)(1)(A), (c)(1)(A)(i) (Count Two), and possessing a firearm as a felon, see
18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count Three).
Green first moved to suppress the evidence seized from his apartment on
grounds that the officers exceeded the state warrant’s scope. A magistrate judge
recommended denying the motion and the district court agreed. The district court
then granted Green leave to challenge whether reasonable suspicion supported the
seizure of the box at the FedEx facility and whether probable cause supported
Green’s arrest. Green also moved again to suppress the box’s initial seizure and his
arrest. The district court adopted the magistrate judge’s recommendation and denied
that motion as well.
Green then conditionally pled guilty to Count Two, reserving his right to
appeal the suppression motion denials. The district court sentenced him to 60
months of imprisonment. Green now appeals, challenging the constitutionality of
the box’s initial seizure, his arrest, and the protective sweep.
II. Analysis
“A mixed standard of review applies to [] denial[s] of [] motion[s] to suppress
evidence.” United States v. Williams, 777 F.3d 1013, 1015 (8th Cir. 2015). We
review the district court’s findings of fact for clear error and its denials of Green’s
suppression motions de novo. United States v. Smith, 820 F.3d 356, 359–60 (8th
Cir. 2016).
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A. The Package’s Initial Seizure
Green first argues that a seizure occurred when Detective Garcia removed the
box from the conveyor belt at a FedEx facility and took it to the back of the
warehouse for Zina to sniff and that Detective Garcia lacked reasonable suspicion to
support that seizure. We disagree.
The Fourth Amendment to the Constitution protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures[.]” See United States v. Ameling, 328 F.3d 443, 447 (8th Cir.
2003) (noting that the Fourth Amendment applies to the states through the
Fourteenth Amendment). In United States v. Va Lerie, we held that a seizure occurs
when law enforcement “meaningful[ly] interfere[s] with an individual’s possessory
interests in property[.]” 424 F.3d 694, 706 (8th Cir. 2005) (en banc). By implication,
the meaningful-interference requirement means that “not every governmental
interference with a person’s property constitutes a seizure of that property under the
Constitution.” Id. at 702. Va Lerie involved checked luggage at a bus station but
approvingly cited several cases applying the same principles to the drug-interdiction-
of-mail context. Id. at 707–08; see United States v. Gomez, 312 F.3d 920, 923–24
(8th Cir. 2002) (holding no seizure occurred when a drug-interdiction officer moved
a package to a command center twenty yards from a conveyor belt in a post office’s
sorting area); United States v. Vasquez, 213 F.3d 425, 426 (8th Cir. 2000) (holding
no seizure occurred when drug-interdiction officers at a FedEx facility had a
narcotics dog sniff a package).
In Va Lerie, we held that “the [meaningful-interference] seizure standard
prohibits the government’s conversion of an individual’s private property, as
opposed to the mere technical trespass to an individual’s private property.” 424 F.3d
at 702. In fleshing out that standard, we supplied three factors courts should focus
on when considering whether detaining a package constitutes a seizure: (1) whether
it delayed a passenger’s travel or significantly impacted the passenger’s freedom of
movement; (2) whether it delayed the package’s timely delivery; and (3) whether it
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deprived the carrier of custody of the item. Id. at 707. “If none of these factors is
satisfied, then no Fourth Amendment seizure has occurred. Conversely, if even a
single factor is satisfied, then a Fourth Amendment seizure has occurred.” Id.“A law enforcement officer must have reasonable suspicion that a piece of
mail, or a package shipped via a commercial carrier, contains contraband to lawfully
seize it for investigative purposes.” United States v. Smith, 383 F.3d 700, 704 (8th
Cir. 2004). Reasonable suspicion “is a level of suspicion ‘considerably less than
proof of wrongdoing by a preponderance of the evidence.’ In evaluating whether
suspicion is reasonable, ‘we must consider the totality of the circumstances—the
whole picture.’ The inquiry is not ‘readily . . . reduced to a neat set of legal rules.’”
United States v. Huerta, 655 F.3d 806, 809 (8th Cir. 2011) (internal citations
omitted) (quoting United States v. Sokolow, 490 U.S. 1, 7–8 (1989)). We have held
that a K9’s positive indication allows an officer to seize a package to further
investigate it. See United States v. Zacher, 465 F.3d 336, 338 (8th Cir. 2006). In
other words, if a K9 alerts to a package, then an officer has reasonable suspicion to
seize that package.
So, the key question here is when the seizure took place. If it took place before
Zina alerted to the box, the only suspicious facts that could support reasonable
suspicion involve the box’s appearance. On the other hand, if the seizure happened
post-alert, then the reasonable-suspicion determination can include Zina’s positive
indication. See, e.g., Zacher, 465 F.3d at 338 (holding a K9’s positive indication
supports reasonable suspicion).
Green does not argue that either of the first two Va Lerie factors are met. So,
whether the box was seized boils down to whether the third Va Lerie factor is met.
That is, whether Detective Garcia deprived FedEx of custody of the box by removing
it from the conveyor belt and walking it 200 feet to Zina at the back of the facility.
See Va Lerie, 424 F.3d at 707. We conclude that Detective Garcia did not deprive
FedEx of custody because he was acting at FedEx’s direction. Consideration of our
case law reveals why.
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In Zacher, we held that no seizure occurred when an officer placed a package
on the floor at the FedEx facility for a K9 sniff. 465 F.3d at 339. We reasoned that
“[n]o change in custody occurred when [the detective] placed the package on the
floor, since a reasonable person could expect FedEx to handle his or her package the
same way.” Id. So, we focused on “the sender’s reasonable expectations of how the
carrier would handle the package” and said that those expectations “define[d] the
scope of the carrier’s custody.” Id. (citing Va Lerie, 424 F.3d at 707 n.7). From
Zacher, we know that an officer moving and handling a package does not
automatically constitute a seizure.
In Va Lerie, we also applied the sender’s-reasonable-expectation test to the
custody question. We observed that “a commercial bus passenger who checks his
luggage should reasonably expect his luggage to endure a fair amount of handling—
if his luggage were not handled, it would not reach its destination.” 424 F.3d at 706.
In applying the test, we wrote that the officers there “removed [the passenger]’s
checked luggage from the lower luggage compartment to a room inside the terminal
at [the bus company]’s request.” Id. at 708 (emphasis added). As a result, we
concluded that “no Fourth Amendment seizure occurred.” Id. at 708–09. The
conclusion we draw from Va Lerie is that when officers are acting at the carrier’s
direction and complying with its guidance, a seizure is not likely to have occurred.
In United States v. Alvarez-Manzo, we concluded that officers acted outside
the carrier’s direction by moving a bag from the luggage compartment to the
passenger compartment. 570 F.3d 1070, 1076–77 (8th Cir. 2009). We distinguished
the case from Va Lerie by observing that the officer, “not [the bus company], was
directing the action with respect to [the passenger]’s bag[.]” Id. at 1076. The
holding in Alvarez-Manzo “did not turn on where law enforcement took the bag but
at whose direction law enforcement acted when it did so.” Id. at 1076. Alvarez-
Manzo helpfully describes the holding in Va Lerie as well: “Va Lerie provides that
law enforcement did not deprive [the bus company] of its custody of [the
passenger]’s bag because, although law enforcement had physical possession of the
bag, [the bus company] was directing the action in terms of what law enforcement
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could do with [the passenger]’s bag.” Id. (emphasis added). Reading these three
cases together, it is clear that the third Va Lerie factor (whether the carrier was
deprived of custody) turns more on whose direction law enforcement followed,
rather than where the package was briefly taken.
Green disputes this conclusion, arguing that acting under the direction of the
carrier means that the carrier’s employee must specifically identify the parcel as
suspicious. We disagree. Green’s reading of Alvarez-Manzo does not account for
Va Lerie’s facts. There, the carrier did not direct law enforcement to the suspicious
luggage. 424 F.3d at 696. Instead, the opposite happened. Id. The carrier’s
“direction” in Va Lerie was limited to general designations about where to bring the
luggage after the officer had identified it as suspicious. Id. at 708. Va Lerie is like
our case because Detective Garcia identified the box as suspicious and acted at the
direction of FedEx by taking the package to the location FedEx designated for K9
sniffs. Taking Alvarez-Manzo and Va Lerie together requires that we reject Green’s
suggestion that a carrier official must be the first to identify a parcel as suspicious.
This rule would not comport with Va Lerie nor many cases it approvingly cited. See,
e.g., United States v. Ward, 114 F.3d 1024, 1027–28 (7th Cir. 1998) (involving law
enforcement first identifying suspicious luggage); United States v. Johnson, 990
F.2d 1129, 1130–31 (9th Cir. 1993) (same).
We therefore hold that the third Va Lerie factor is not met here because when
Detective Garcia briefly moved the box, he did so at FedEx’s direction. This leads
us to conclude that Detective Garcia did not seize the box until after Zina alerted to
its contents, at which point there was clearly reasonable suspicion to support the
seizure. See Zacher, 465 F.3d at 338 (noting a K9’s positive indication is enough
for reasonable suspicion).1
1
Based on our conclusion that Detective Garcia did not seize the box when he
initially removed it from the conveyor belt and carried it to the back of the facility
for the K9 sniff, we need not reach the district court’s alternative holding that
reasonable suspicion also supported seizing the box from the outset.
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B. Green’s Arrest
Green next argues that the officers lacked probable cause to arrest him after
he took delivery of the box and put it inside his apartment. Again, we disagree.
Probable cause is required for a warrantless arrest. United States v. Houston,
548 F.3d 1151, 1154 (8th Cir. 2008). “An officer has probable cause to make a
warrantless arrest when the facts and circumstances are sufficient to lead a
reasonable person to believe that the defendant has committed or is committing an
offense.” Royster v. Nichols, 698 F.3d 681, 688 (8th Cir. 2012) (quoting Fisher v.
Wal-Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010)). Our precedent does not
require that arresting officers witness a crime or have all the evidence needed to
sustain a conviction; instead, officers only need a “probability or substantial chance
of criminal activity, rather than an actual showing of criminal activity[.]” United
States v. Winarske, 715 F.3d 1063, 1067 (8th Cir. 2013); accord United States v.
Mendoza, 421 F.3d 663, 667 (8th Cir. 2005). “Law enforcement officers have
‘substantial latitude in interpreting and drawing inferences from factual
circumstances.’” United States v. Henderson, 613 F.3d 1177, 1181 (8th Cir. 2010)
(emphasis added) (quoting United States v. Washington, 109 F.3d 459, 465 (8th Cir.
1997)).
Here, Detective Garcia initially suspected that the box contained drugs
because it was (1) a moving box, (2) shipped from a source city, and (3) had a glued-
shut lid. Zina, a reliable drug dog, then alerted to the box. See United States v.
Donnelly, 475 F.3d 946, 955 (8th Cir. 2007) (holding a K9 alerting to a package
supports probable cause to believe drugs are present). Later, Detective Garcia
witnessed Green place the box inside the apartment where it was delivered. See
United States v. Brown, 929 F.3d 1030, 1037 (8th Cir. 2019) (holding the delivery
of a drug-filled package to a specific address provided probable cause for the search
of the apartment). Detective Garcia also heard Green say, “[t]he box is here” just
before Green placed it inside the apartment. As the district court noted, his
“familiarity with the [box] suggested he probably knew what was inside.”
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Green argues that the officers lacked enough information to support probable
cause to arrest him. For all they knew, Green theorizes, he could have been helping
a friend by getting their mail. But probable cause only requires showing a
“substantial chance of criminal activity, rather than an actual showing of criminal
activity[.]” Winarske, 715 F.3d at 1067.
We conclude that the box’s suspicious appearance and Zina’s alert, together
with Green picking up the box, placing it inside the apartment, and demonstrating
his familiarity with that specific box supported probable cause to arrest him.
C. The Protective Sweep
Green last argues that the lengthy protective sweep of his entire apartment was
unconstitutional because the anticipatory warrant only authorized the officers to
seize one item (the box), which they found just inside the front door. He claims that
the tactical team “saw the only item they could seize pursuant to the anticipatory
warrant, chose not to seize it and exit the premises, and proceeded to walk through
the entire apartment for ten to fifteen minutes looking under a mattress, in the kitchen
trash can, in kitchen cabinets, and at or in a shoe box.” On this point, we agree with
Green.
As usual in the Fourth Amendment context, reasonableness controls the
analysis when it comes to “the method of execution of [a] warrant.” United States
v. Ramirez, 523 U.S. 65, 71 (1998). “[T]he search of a residence is generally
unreasonable ‘without a warrant issued on probable cause.’” United States v.
Waters, 883 F.3d 1022, 1026 (8th Cir. 2018) (quoting Maryland v. Buie, 494 U.S.
325, 331 (1990)). But “[a]n exception to the general warrant requirement of the
Fourth Amendment is the protective sweep.” Id. A protective sweep “is narrowly
confined to a cursory visual inspection of those places in which a person might be
hiding.” Id. “During a properly limited protective sweep, the police may seize an
item that is in plain view if its incriminating character is ‘immediately apparent.’”
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United States v. Green, 560 F.3d 853, 856 (8th Cir. 2009) (quoting Horton v.
California, 496 U.S. 128, 136 (1990)).
In Buie, the Supreme Court addressed when and how officers may conduct a
protective sweep in the context of one conducted incident to an arrest. 494 U.S. at
334. First, the Court held that, as a matter of course, officers may look in spaces
“immediately adjoining the place of arrest from which an attack could be
immediately launched.” Id. Second, the Court held that to sweep beyond those
“immediately adjoining” spaces, officers must have reasonable suspicion to believe
dangerous individuals are hiding in the area to be swept. Id. at 334, n.2.
In the executing-a-search-warrant context, we have held that officers may
conduct a protective sweep. See United States v. Jones, 471 F.3d 868, 874–75 (8th
Cir. 2006). But what type of sweep can officers conduct while executing a search
warrant?
Here, the district court concluded that the officers justifiably swept Green’s
apartment based on language in Bailey v. United States, 568 U.S. 186, 194 (2013).
Bailey said that a “search for narcotics is the kind of transaction that may give rise
to sudden violence[.]” 568 U.S. at 194 (quoting Michigan v. Summers, 452 U.S.
692, 702 (8th Cir. 1981)). In such situations, the Court said that law enforcement
can “secure the premises” to “exercise unquestioned command of the situation.” Id.at 194–95. But Bailey dealt with questions about law enforcement’s authority to
detain people both on and off the premises while executing a warrant. It did not
decide when officers may execute a protective sweep incident to the execution of a
search warrant.
While Bailey did not address that question, we did in United States v. Waldner,
425 F.3d 514 (8th Cir. 2005), and again in United States v. Rodriguez, 834 F.3d 937(8th Cir. 2016). In Waldner, we stated that “Buie authorizes protective sweeps for
unknown individuals in a house who may pose a threat to officers as they effectuate
an arrest; Buie does not allow a protective sweep for weapons or contraband.” 425
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F.3d at 517. And, in Waldner, we held that in the context of a non-arrest situation,
conducting a protective sweep “requires a showing of a reasonable suspicion of
dangerous individuals in the house.” Id. We reaffirmed the rule from Waldner in
Rodriguez. Rodriguez, 834 F.3d at 942 (“[A] protective sweep in the absence of an
arrest or reasonable suspicion of dangerous individuals was clearly illegal under
Waldner.”). Here, just like in Waldner and Rodriguez, we are dealing with a
protective sweep in the context of a non-arrest situation (i.e., executing a search
warrant). 2
The government tries to distinguish Waldner and Rodriguez because the
former involved serving a protective order and the latter involved entering a house
with consent. But Waldner and Rodriguez are clear: In a non-arrest context, a
protective sweep requires reasonable suspicion of dangerous individuals inside from
the outset. See Waldner, 425 F.3d at 517; Rodriguez, 834 F.3d at 942. Because the
government does not argue that the officers had reasonable suspicion to believe that
dangerous individuals were present in Green’s apartment before they began the
protective sweep, we conclude that the protective sweep of Green’s apartment
violated the Fourth Amendment.
Even assuming a protective sweep of Green’s apartment was valid, the scope
of the sweep here also violated the Constitution. The Supreme Court has held that a
protective sweep “may extend only to a cursory inspection of those spaces where a
person may be found.” Buie, 494 U.S. at 335. A protective sweep must be “quick
2
The government does not argue that Green’s arrest outside the apartment
justified a protective sweep of his apartment. Even so, we note that the government
would need to point to “articulable facts and rational inferences supporting the
officers’ reasonable beliefs that someone else could be inside posing a danger to
them during or following the arrest.” United States v. Alatorre, 863 F.3d 810, 814–
15 (8th Cir. 2017) (holding a protective sweep of a residence was justified after
officers removed the arrestee to the porch where there were specific facts indicating
the clear possibility that dangerous individuals and weapons were inside). The
government did not point us to any such facts, beyond the general drug context, here.
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and limited” and “initially confined to places large enough to conceal a person.”
United States v. Boyd, 180 F.3d 967, 976 (8th Cir. 1999) (quoting Buie, 494 U.S. at
327); see Alatorre, 863 F.3d at 815 (holding a task force conducted a constitutional
protective sweep “because it lasted only two minutes and was confined to places
large enough to hide a person”). Here, a team of officers performed a “sweep” of
Green’s apartment that lasted around ten minutes and included looking inside
kitchen cupboards, trash cans, and even inside a shoebox. This exhaustive search
far exceeded the permissible bounds of a protective sweep both in the time it took
for a team of officers to “sweep” the apartment and the places that were searched.
Cf. United States v. Thompson, 2021 WL 3136048, at *1, *3 (8th Cir. July 26, 2021)
(holding the sweep of a house was justified where the suspicious conduct of people
inside and the defendant’s criminal history involving concealed weapons supported
the officers’ reasonable suspicion that dangerous individuals were present in the
home). We therefore conclude that, even if a protective sweep of Green’s apartment
was valid, the scope of the sweep violated the Fourth Amendment.
D. Independent Source Doctrine
Considering our conclusion that the protective sweep of Green’s apartment
violated the Constitution, we next ask whether an exception to the exclusionary rule
applies. See Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016) (laying out multiple
exceptions to the exclusionary rule); see also Hudson v. Michigan, 547 U.S. 586,
591 (2006) (“Suppression of evidence . . . has always been [a] last resort, not [the]
first impulse.”). The government argues that the independent source doctrine works
to prevent exclusion here.3
3
While the district court did not rely on the independent source doctrine
below, “[w]e may affirm the district court’s denial of a motion to suppress on any
ground the record supports.” United States v. Murillo-Salgado, 854 F.3d 407, 414
(8th Cir. 2017) (quotation omitted); see, e.g., United States v. Perez-Trevino, 891
F.3d 359, 367 (8th Cir. 2018) (affirming the denial of a motion to suppress on a
different ground than the district court); United States v. Brandwein, 796 F.3d 980,
984 (8th Cir. 2015) (same).
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“The independent source doctrine allows admission of ‘evidence initially
discovered during, or as a consequence of, an unlawful search, but later obtained
independently from activities untainted by the initial illegality.’” United States v.
Anguiano, 934 F.3d 871, 874 (8th Cir. 2019) (quoting Murray v. United States, 487
U.S. 533, 537 (1988)); see Strieff, 136 S. Ct. at 2061. To invoke the doctrine, the
government must show “(1) that the decision to seek the warrant was independent
of the unlawful entry—i.e., that police would have sought the warrant even if the
initial entry had not occurred—and (2) that the information obtained through the
unlawful entry did not affect the magistrate’s decision to issue the warrant.” United
States v. Khabeer, 410 F.3d 477, 483 (8th Cir. 2005) (emphasis added); accord
United States v. Swope, 542 F.3d 609, 613–14 (8th Cir. 2008).
Here, there is an argument that the independent source doctrine applies. Apart
from the protective sweep, the officers would still have discovered that, as suspected,
the box contained drugs. And the officers saw Green place the box inside the
apartment after indicating that he recognized it. So, there was clear evidence
associating a box containing drugs with the apartment. Even without the protective
sweep, then, the officers may have obtained a warrant to search Green’s apartment.
See Swope, 542 F.3d at 615 (holding a search warrant obtained after an unlawful
The government also argues that the good-faith exception to the exclusionary
rule applies. See United States v. Leon, 468 U.S. 897, 920–21 (1984) (“[W]hen an
officer acting with objective good faith has obtained a search warrant from a judge
or magistrate and acted within its scope . . . there is no police illegality and thus
nothing to deter.”); see also United States v. Cannon, 703 F.3d 407, 413 (8th Cir.
2013) (“For the Leon exception to apply when the warrant is based on evidence
obtained through a Fourth Amendment violation, the detectives’ prewarrant conduct
must have been ‘close enough to the line of validity to make the officers’ belief in
the validity of the warrant objectively reasonable.’” (quoting United States v.
Conner, 127 F.3d 663, 667 (8th Cir. 1997))). But the good-faith exception does not
apply here because the scope of the protective sweep—a ten-minute long exhaustive
search of every nook and cranny of Green’s apartment—was clearly illegal under
our precedent. See, e.g., Boyd, 180 F.3d at 976 (holding a protective sweep must be
“quick and limited” and “initially confined to places large enough to conceal a
person”).
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search was an independent source for physical evidence because the officers’
decision to seek the warrant did not depend on the unlawful search and the redacted
warrant application still supported probable cause); United States v. Craig, 630 F.3d
717, 722 (8th Cir. 2011) (same).
But just like in Khabeer, we must remand so that the district court has an
opportunity to “explicitly find” whether “the agents would have sought a warrant if
they had not earlier” conducted a lengthy protective sweep of Green’s apartment.
410 F.3d at 484 (quoting Murray, 487 U.S. at 543 (“[I]t is the function of the
[d]istrict [c]ourt rather than the [c]ourt of [a]ppeals to determine the facts” and
concluding that the possible inferences to be drawn from the record are not “clear
enough to justify the conclusion that the [d]istrict [c]ourt’s findings amounted to a
determination of independent source.”)).
III. Conclusion
For these reasons, we retain jurisdiction over this appeal, but remand to the
district court for the limited purpose of making findings of fact as to whether the
officers’ decision to seek a search warrant for Green’s apartment was prompted by
what the officers observed when they conducted their protective sweep.
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