                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                    March 3, 2005

                                                            Charles R. Fulbruge III
                             No. 04-10368                           Clerk



UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellant,

                                 versus

RICKY FIELDS,

                                                    Defendant-Appellee,


           Appeal from the United States District Court
                for the Northern District of Texas
                        (No. 4:03-CR-255-A)


Before WIENER and PRADO, Circuit Judges, and KINKEADE,* District
Judge.

PER CURIAM:**

     Plaintiff-Appellant      the     United   States      of      America

(“government”)   appeals   the   suppression   of    evidence   found     by

officers during a warrantless search of Defendant-Appellee Ricky

Fields’s apartment.   The government argues that the officers were

legally in the home by consent.     We find that the officers exceeded

the scope of consent given and therefore affirm.

                      I.   FACTS AND PROCEEDINGS


     *
       District Judge for the Northern District of Texas, sitting
by designation.
     **
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
A.    Background Facts

      On the night of June 9, 2000, three police officers, Officers

Carlson, Tatsak and Powell, were dispatched to a domestic dispute

call at an apartment in Everman, Texas. When the officers arrived,

they were met by Maria/Marie1 Price, who informed them that her

boyfriend/husband, Fields, had locked her out and moved some of her

belongings out of the apartment.2            There was no evidence of any

physical altercation and none is alleged by either Price or Fields.

The officers used their batons to knock on the front and back doors

of the apartment but received no response.               Noticing that one of

the apartment windows was broken, Officer Powell suggested to Price

that an officer climb in through the broken window and unlock the

entrance from the inside.          Price consented to that recommendation,

and Officer Powell, after removing shards of broken glass, climbed

through the window, then unlocked and opened the front door.

Officers     Carlson    and   Tatsak,     along   with    Price,       entered    the

apartment, which appeared to be in disarray.                The officers then

searched the premises for Fields, eventually finding him asleep in

the   upstairs     bedroom.        Officer   Tatsak      awakened      Fields     and

questioned him about his earlier dispute with Price.                          Officer

Carlson,     at   the   top   of   the   staircase,   spotted      a    gun    barrel


      1
          It is uncertain, looking at the record, as to which is her
name.
      2
       One testifying officer referred to Price as Field’s
girlfriend, and the other referred to her as his wife.

                                         2
protruding from underneath a towel.               He uncovered the gun, a

revolver, picked it up, and disarmed it by removing the cartridges

from the cylinder and the cylinder from the gun.                Officer Carlson

asked Fields to whom the gun belonged, and Fields responded he had

received it as a gift.

      At some point, Officer Carlson went downstairs with the gun,

went outside to his patrol car, and called the dispatcher. Officer

Carlson had the serial number run on the gun and was advised that

the gun had been reported stolen.            While that was transpiring,

Officers Tatsak and Powell were attempting to mediate between

Fields   and   Price   who   were   angry   and   yelling       at   each   other.

Eventually,    Price   volunteered    to    leave   the    apartment        and   go

elsewhere.     The officers left but took the revolver with them.

Later that night, the officers were informed that in fact the gun

was   not   stolen.     At   some   time    following     the    incident,        the

authorities discovered that Fields was a convicted felon.

B.    PROCEEDINGS

      Fields was charged with being a felon in possession of a

firearm, a violation of 18 U.S.C. § 922(g)(1).              He filed a motion

to suppress the firearm seized from his home without a warrant.

The district court held a suppression hearing and granted Fields’s

motion, holding that the government had failed to meet its burden

of showing that the search of Fields’s apartment was conducted

within the scope of the consent given by Price, or that the seizure



                                      3
of the firearm was otherwise lawful.                     The government then filed a

notice of appeal of the court’s decision to suppress the revolver.

II.       ANALYSIS

A.    STANDARD    OF   REVIEW

      “The ‘standard of review for a motion to suppress based on

live testimony at a suppression hearing is to accept the trial

court’s factual findings unless clearly erroneous or influenced by

an incorrect view of the law.’”3                    Evidence is considered “in the

light most favorable to the prevailing party,” here the Defendant

Fields.4        The ultimate conclusion about the constitutionality of

the law enforcement conduct is reviewed de novo.5

B.    THE OFFICERS EXCEEDED      THE   SCOPE   OF   CONSENT

      The district court concluded that the government failed to

meet its burden of showing that the officers acted within the scope

of consent given by Price.              In determining the scope of a consent

to search, a court does not consider the subjective intentions of

the   consenting         party    or     subjective           interpretations   of   the

officers.6        The standard for measuring the scope of consent “is


      3
       United States v. Outlaw, 319 F.3d 701, 704 (5th Cir. 2003)
(quoting United States v. Williams, 69 F.3d 27, 28 (5th Cir.
1995) and United States v. Alvarez, 6 F.3d 287, 289 (5th Cir.
1993)).
      4
          United States v. Shelton, 337 F.3d 529, 532 (5th Cir.
2003).
      5
          Id.
      6
          3 Wayne R. LaFave, Search and Seizure § 8.1 (3d ed. 1996).

                                               4
that of ‘objective’ reasonableness —— what would the typical

reasonable person have understood by the exchange” between the

officers and Price.7        Objective reasonableness is a question of law

that       is   reviewed   de   novo,8   but   the   factual    circumstances

surrounding the consent “are highly relevant when determining what

the reasonable person would have believed to be the outer bounds of

the consent that was given.”9        “The trial court’s factual findings

must be accepted unless they are clearly erroneous or influenced by

an incorrect view of the law.”10

       The district court, in its findings of fact, stated that (1)

after Fields failed to answer the door, the officers suggested to

Price that one officer could climb into the apartment through the

broken window and unlock the exterior door, and (2) Price consented

only to that act.          The district court’s finding is supported by

testimony provided at the suppression hearing.                 In response to

questioning from the court as to what Price actually consented to,


       7
            Florida v. Jimeno, 500 U.S. 248, 251 (1991).
       8
       See United States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir.
1992) (en banc) (7-7 decision).
       9
       United States v. Mendoza-Gonzalez, 318 F.3d 663, 667 (5th
Cir. 2003). “When the police are relying upon consent as the
basis for their warrantless search, they have no more authority
than they have apparently been given by the consent. It is thus
important to take account of any express or implied limitations
or qualifications attending that consent which establish the
permissible scope of the search in terms of such matters as time,
duration, area, or intensity.” 3 LaFave, supra note 6, § 8.1.
       10
       United States v. Rich, 992 F.2d 502, 505 (5th Cir. 1993)
(internal quotations omitted).

                                         5
Officer Tatsak stated that: “I can’t tell you exactly what her

reasoning was.    She just wanted us to get in the house and unlock

the door.”11   Considering the evidence “in the light most favorable

to the prevailing party,” we conclude that the district court did

not err in ruling that the officers acted outside the scope of

consent given by Price when after entering the apartment and

unlocking the front door, they proceeded on their own to search the

entire premises.

     The government contends on appeal that the officers were

entitled to    make   a    protective       sweep    of   the   entire   apartment

pursuant to our recent decision in United States v. Gould.12                      In

Gould, officers went to a mobile home in response to information

received   that   Gould,    known   to      be   a   convicted     felon   with    a

reputation for violence, was planning to kill two local judges.

The officers’ trip to the mobile home was for the sole purpose of

speaking with Gould. Another resident of the mobile home consented

to the officers’ entry to talk to Gould and indicated he was in his

bedroom. When the officers looked through the open door to Gould’s

bedroom, they saw that he was not there and proceeded to conduct a

protective sweep of the bedroom, during which they seized three

rifles that were in plain view.

     11
       Officer Carlson was unable to remember whether Price
consented to anything. Officer Powell did not testify at the
suppression hearing.
     12
       364 F.3d 578 (5th Cir.) (en banc), cert. denied, 125
S.Ct. 437 (2004).

                                        6
     Looking to the Supreme Court’s decision in Maryland v. Buie,13

we established a five-part test for analyzing the constitutionality

of a protective sweep: (1) The police must not have entered or

remained in the home illegally, and their presence within the home

must have been for a legitimate law enforcement purpose; (2) the

protective sweep must be 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 legitimate protective sweep

may be no more than a cursory inspection of those spaces where a

person might be found; (4) the sweep may last no longer than is

necessary to dispel the reasonable suspicion of danger; (5) the

sweep may last no longer than the police are justified in remaining

on the premises.14

     In the instant case, the officers only had consent to enter

through the window and proceed directly to the entrance door to

unlock and open it; the consent extended to no other areas of the

apartment.    Once the door-unlocking mission was accomplished, the

consent to be in the apartment ended.   There was neither need nor

consent for the other two officers to enter the apartment once the

door was opened, and there was no necessity for them to make a

protective sweep of the entire apartment, including the upstairs,

to secure the one officer’s safe withdrawal after unlocking the


     13
          494 U.S. 325 (1990).
     14
          See Gould, 364 F.3d at 587.

                                  7
door.     The so-called protective sweep exceeded the scope of the

consent    to   make   the   warrantless   entry,   both   temporally   and

spatially, and there was no issue, even fleeting, of safety.             It

follows that the unlawful search in the guise of a protective sweep

could yield no evidence capable of surviving a motion to suppress.

The district court’s suppression of the firearm is

AFFIRMED.15




     15
       In the alternative, the government argues that the
evidence should not be suppressed because the officers acted in
the objectively reasonable belief that their conduct did not
violate the Fourth Amendment. Under the “good faith” exception
to the exclusionary rule, “evidence is not to be suppressed . . .
where it is discovered by officers in the course of actions that
are taken in good faith and in the reasonable, though mistaken,
belief that they are authorized.” United States v. De Leon-
Reyna, 930 F.2d 396, 400 (5th Cir. 1991). In light of the
evidence at the suppression hearing, we decline to find that the
officers were objectively reasonable in believing they were
entitled to search the entire apartment.

                                     8
