                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3415
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of South Dakota.
David D. Waldner,                       *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: March 15, 2005
                                Filed: October 10, 2005
                                 ___________

Before MURPHY, BYE, and SMITH, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

      David Waldner was sentenced to serve three concurrent six-month terms, a
two-year term of supervised release, and pay a special assessment of $100 for
unlawful possession of a firearm by a prohibited person and for possession of an
unregistered silencer. Pursuant to a conditional plea agreement, Waldner appeals the
denial of his motion to suppress evidence of firearms and statements made to the
police about those firearms. We reverse.
                                    I. Background
       David Waldner's wife, Karen Waldner, obtained an ex parte temporary
protection order against him. Deputy Sheriff Matt McQuisten and Officer Matt Starr
went to Waldner's house to serve the order. McQuisten believed Karen Waldner was
home when she called the Sheriff's office to request that the protective order be
served. In the petition and affidavit for protection order, Karen Waldner stated that
"[t]his morning [Waldner] choked me with his hands around my neck and said that
he would kill me. He also threatened to kill me with his guns . . . He has guns, and
lately he has been in a very abusive and [agitated] mood-Things will make him mad
for no reason."

       The officers approached Waldner's home and knocked on the front door. They
could see some lights on, including the light of a television. No one answered the
door, so the officers looked in the garage windows and saw a pickup parked within.
The officers then had the police dispatcher call the house. The officers heard the
telephone ring and the answering machine pick up, but no one answered the
telephone.

       The officers walked to the back of the house where they could still see lights
on inside. They also saw that a door leading into the attached garage was open. The
officers entered the garage through the door and mounted a few steps to a small
platform beside a door leading directly into the house. They knocked on this door, but
no one answered. As the officers started to walk away, they heard a dog bark and then
Waldner came to the door. The officers introduced themselves and explained why
they were there, advising Waldner that he had to vacate the premises immediately.

       The officers told Waldner that he could go back into the house and gather a few
things, but only if they accompanied him. Waldner consented to allow the officers
inside. At no time was Waldner placed in custody. McQuisten explained that before
Waldner would be permitted to go into a room, one or both of the officers would first


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have to look around that room for weapons or other people. Starr asked Waldner if
there was anyone else in the home or if there were any weapons, and Waldner said
"no."

        Waldner and the officers went into the basement. Starr went down the stairs
first. Waldner indicated that he wanted to go into a room to the right side of the stairs
to gather clothes. McQuisten looked for weapons or people, and, seeing neither,
permitted Waldner into the room. Starr did not enter this room. Instead, he remained
in the common area of the basement standing five to ten feet from McQuisten.

        When Waldner had finished gathering clothes, he went into the open area of
the basement. The officers' and Waldner's testimony diverge at this point. McQuisten
testified that he believed Waldner "indicated" an intent to enter the office when he
walked toward "that area." McQuisten also testified that he and Waldner were about
five to ten feet away from the office. McQuisten indicated that Starr decided to
"sweep" the office because it was in the "vicinity." Conversely, Waldner indicated
that Starr walked into the basement office, which was fifteen to twenty feet away
from where he was standing and talking to McQuisten. Waldner insisted that he gave
no indication that he wanted to go into the office.

       When Starr entered the office, he immediately saw a wooden gun cabinet with
a glass front. Inside the cabinet Starr saw a rifle with an attached silencer, and he
alerted McQuisten. Starr suspected that the silencer was illegal. Starr first confirmed
with McQuisten that Waldner had stated there were no firearms in the house. Then,
Starr asked Waldner if he owned the gun and where he got it. Waldner stated that he
found it on a job site, brought it home, and put it in the cabinet. Starr seized the rifle.
Waldner then told the officers that he owned other firearms but that these guns were
not on the premises. Waldner was indicted on two counts of unlawful possession of
a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2),



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and one count of possessing an unregistered firearm silencer in violation of 26 U.S.C.
§§ 5861(d) and 5871.

      Waldner pled not guilty, and he later filed a motion to suppress the firearms
and the statements made to the police about those firearms. At a suppression hearing,
the magistrate recommended denial of Waldner's motion. Waldner filed objections,
and the district court entered an order adopting the magistrate's report and
recommendation denying Waldner's motion.

      Waldner entered a conditional plea of guilty, reserving his right to appeal the
denial of his motion to suppress. The district court accepted Waldner's plea and
sentenced Waldner to six months' imprisonment on each count to be served
concurrently, a concurrent two-year term of supervised release on each count, and a
special assessment of $100 per count.

                                   II. Discussion
       Waldner argues that Starr went on a "frolic of his own" and entered the office
area of the basement, observing the rifle and silencer. Consequently, Waldner
contends that a protective sweep under Maryland v. Buie, 494 U.S. 325, 327 (1990),
was unjustified. We review the district court's conclusion that a protective sweep was
justified de novo. United States v. Cash, 378 F.3d 745, 747 (8th Cir. 2004) (citing
United States v. Boyd, 180 F.3d 967, 975 (8th Cir. 1999)). We hold that the entry into
the office was unjustified.

       In Buie the Supreme Court established a two-prong test for determining
whether a protective sweep incident to an arrest was constitutionally permissible.
First, the Buie Court held "as an incident to the arrest the officers could, 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." 494 U.S. at 334. Second, the Court permitted


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a broader sweep "when the searching officer possesses a reasonable belief based on
specific and articulable facts that the area to be swept harbors an individual posing
a danger to those on the arrest scene." Id. at 337. In either circumstance, a protective
sweep "is not a full search of the premises, but may extend only to a cursory
inspection of those spaces where a person may be found. The sweep lasts no longer
than is necessary to dispel the reasonable suspicion of danger. . . ." Id. at 335–36.

       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. See United States v. Noushfar, 78 F.3d 1442, 1448
(9th Cir. 1996); United States v. Blue, 78 F.3d 56, 60–61 (2d Cir. 1996); United
States v. Ford, 56 F.3d 265, 270 (D.C. Cir. 1995); United States v. Mains, 33 F.3d
1222, 1227 (10th Cir. 1994).

       The officers conducted the search incident to service of a protective order—a
non-arrest situation. Other circuits have applied Buie to non-arrest situations but only
under the second prong of Buie, which requires a showing of a reasonable suspicion
of dangerous individuals in the house. See United States v. Gould, 364 F.3d 578, 584
(5th Cir. 2004) (en banc); United States v. Taylor, 248 F.3d 506, 513–14 (6th Cir.
2001); United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993); United States
v. Patrick, 959 F.2d 991, 996–97 (D.C. Cir. 1992); United States v. Daoust, 916 F.2d
757, 758–59 (1st Cir. 1990). We decline the government's invitation to extend Buie
further.

       Although McQuisten and Starr had knowledge, based upon Karen Waldner's
affidavit, that Waldner might possess weapons, there is no evidence that the officers
had any articulable facts that an unknown individual might be in the office, or
anywhere else in the house, ready to launch an attack. Starr entered the room based
upon his belief that Waldner might go there to get a firearm. Waldner was five to ten
feet from the room when Starr entered the office. Furthermore, Starr stood between


                                          -5-
Waldner and the office, which would have required Waldner to pass Starr in order to
access the office. Under these circumstances, we hold that the protective sweep
exceeded its permissible scope under the Fourth Amendment.

                                      III. Conclusion
        For the foregoing reasons, we reverse the decision of the district court denying
Waldner's motion to suppress. Because we have held that Starr was not lawfully
present in the office, we need not address Waldner's argument that the plain view
doctrine should not apply because it was not immediately apparent that the silencer
was illegal. Similarly, we do not address Waldner's unpreserved argument that the
initial entry into his garage violated the Fourth Amendment because we have held that
Waldner's Fourth Amendment rights were violated when Starr entered the office.

MURPHY, Circuit Judge, concurring in the judgment.

       The court appropriately decides this case on the factual record made in the
district court, which did not establish that the safety of the two officers was
threatened given their locations in the basement and the ambiguity in their testimony
about whether Waldner was headed into the basement office. This does not mean that
Buie would always foreclose a protective sweep when officers are serving a
protective order, however. There is a good deal of evidence that serving domestic
protection orders can be as dangerous for law enforcement officers as making arrests.

      As the court pointed out in United States v. Miller, 306 F.Supp.2d 414, 417
(S.D.N.Y. 2004), such situations are "fraught with the potential for ambush and
violence." Here, Deputy McQuisten had reviewed Karen Waldner's petition which
averred that Waldner had choked her and "threatened to kill [her] with his guns," and
the officers had reason to suspect when they went to the house that they could
experience a dangerous encounter. Nevertheless, Waldner was apparently under their
control when Officer Starr decided to enter the basement office, where he discovered

                                          -6-
the weapon, and Starr himself testified at the suppression hearing that he could not
recall whether or not Waldner had shown an intent to go there. In the proper
circumstances, law enforcement officers should be able to do a protective sweep of
their immediate surroundings incident to processing the service of a protective order
in order to ensure their own safety or that of anyone else present.
                        ______________________________




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