                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                    PU BL ISH
                                                                  December 12, 2006
                   UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                     Clerk of Court
                                TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

       Plaintiff - Appellee,
                                                       No. 05-2357
 v.

 VICTOR M ANUEL TORR ES-
 C ASTR O,

       Defendant - Appellant.



        A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                 FOR T HE D ISTRICT OF NEW M EXICO
                         (D.C. No. CR-04-2537)


Sasha Siemel, (Laura Fashing, Assistant United States Attorney and David C.
Iglesias, United States Attorney, on the brief), Albuquerque, New M exico, for
Plaintiff - Appellee.

Phillip P. M edrano, Assistant Federal Public Defender, Albuquerque, New
M exico, for Defendant - Appellant.


Before TA CH A, Chief Judge, KELLY, and M U RPH Y, Circuit Judges.


KELLY, Circuit Judge.




      Defendant-Appellant Victor M anuel Torres-C astro appeals from his

convictions for possession of an unregistered firearm (sawed-off shotgun) (count
1), 26 U.S.C. §§ 5481, 5681(d) & 5871, and possession of a firearm by an illegal

alien (count 2), 18 U.S.C. §§ 922(g)(5) & 924(a)(2). He was tried before a jury,

found guilty, and sentenced to concurrent 46 month terms of imprisonment and

concurrent two-year terms of unsupervised release. On appeal, M r. Torres-Castro

contests the district court’s denial of his motion to suppress certain evidence and

statements obtained by Albuquerque police officers at his home on December 4,

2004. See United States v. Torres-Castro, 374 F. Supp. 2d 994 (D .N.M . 2005).

He agrees with the district court’s holding that the police conducted an unlawful

protective sw eep of his home, but he argues that the sw eep and the shotgun shells

observed during the sweep tainted his consent to search for a shotgun, discovery

of the shotgun, and his later post-arrest statements to police. Accordingly, he

argues that the district court erred in refusing to suppress the shotgun shells, the

shotgun, and the statements made by him as fruit of the poisonous tree. Our

jurisdiction arises under 28 U.S.C. § 1291 and we affirm.



                                     Background 1



      1
         Some facts were controverted and dependent on the district court’s
credibility determinations. W hen reviewing the denial of a m otion to suppress,
we view the facts in the light most favorable to the government and for clear
error. U nited States v. Guerrero-Espinoza, 462 F.3d 1302, 1305 (10th Cir. 2006).
Fourth Amendment reasonableness is review ed de novo. Id. M r. Torres-Castro
takes issue with several findings of fact by the district court. Aplt. Br. 13-14.
W e have reviewed the record and find the district court’s factual findings are
                                                                        (continued...)

                                           2
      On December 2, 2005, Albuquerque police encountered a fourteen-year-old

girl running down Central Avenue in Albuquerque, New M exico. The girl told

police that her boyfriend was twenty years old, that he had been chasing her, and

that he had threatened to beat her. The police transported the girl to a police

substation where she identified her boyfriend as M r. Torres-Castro. She informed

the police that M r. Torres-Castro was an illegal alien who had been once

deported, that she and M r. Torres-Castro had engaged in sex, that he possessed a

gun, that he had beaten her in the past and restrained her from leaving, and that he

had threatened to shoot anyone who tried to take her away. W hile at the station,

the girl identified a photograph of M r. Torres-C astro, which allowed police to

verify his age and familiarize themselves w ith his appearance. Later that night,

the girl’s mother informed police that she was in the process of obtaining a

restraining order against M r. Torres-Castro.

      Based on this information, police officers Dan Phel, Elder Guevara, and

M ark Elrick decided to visit M r. Torres-Castro’s home. They arrived at around

7:00 p.m. on December 4, 2004, intending to question him but not to arrest him.

The officers had neither an arrest warrant nor a search warrant. Before arriving at

the home, Officer Phel told O fficers G uevara and Elrick that M r. Torres-Castro

had a gun and had engaged in domestic violence. As the officers approached the



      1
      (...continued)
adequately supported by the record and its reasonable inferences.

                                         3
house, they identified M r. Torres-Castro through a front window and noticed that

several other individuals were seated in the front room. W hile the officers w ere

looking through the w indow, one of the individuals in the home saw the officers

and said something to the other individuals, whereupon some left the front room

and moved elsewhere in the house.

      Officer Phel then knocked on the front door, which M r. Torres-Castro

opened. The officers were uniformed but did not draw their weapons. Officer

Phel asked permission for all officers to enter and talk to M r. Torres-Castro.

M r. Torres-Castro agreed, and all three officers entered the house. Officer Phel

began to question M r. Torres-C astro about his relationship with his juvenile

girlfriend.   During this time, Officers Elrick and Guevara noticed that several

individuals were in plain view in one or more back rooms. Officers Elrick and

Guevara then conducted a brief protective sw eep of the other rooms in the house

and directed all individuals in the other rooms to return to the front room and be

seated. None of the individuals or M r. Torres-C astro objected and all individuals

located in the home were assembled in the front room.

      W hile conducting the protective sweep, Officer Elrick saw a box of shotgun

shells in a clear plastic bag on a shelf in an open closet in a bedroom. Officer

Elrick told the other officers about the shells but did not remove them. Officer

Elrick remained near the bedroom door while the other officers spoke with the

individuals in the front room.

                                          4
      Officer Guevara then asked each of the individuals if they had any weapons

and if they would consent to a search of the residence. During this questioning,

Officer Guevara specifically advised M r. Torres-Castro in Spanish that he did not

have to answ er. Officer Guevara testified that officer safety issues prompted his

questioning and that such safety issues arose after discovery of the shells and with

the officers’ prior knowledge that M r. Torres-Castro had a gun. R. Vol. III, at 44-

45 (Tr. Feb. 5, 2005). Officer Phel testified that he did not intend to arrest M r.

Torres-Castro based on the discovery of the shells because he did not know it was

illegal for him to possess them.

      Officer Guevara eventually asked M r. Torres-C astro, “Is there a shotgun in

the house? W here is the shotgun at?” M r. Torres-Castro responded in Spanish

that there was a shotgun located under a mattress in the bedroom where the shells

were located, and he gave consent for the officers to search the house for

weapons. The district court determined that such consent was voluntary under the

totality of the circumstances. At some point, while the individuals were

assembled in the front room, the officers conducted a pat-down search of each

male for weapons.

      Officer Guevara located the shotgun in the bedroom and noticed that it

appeared to be an illegal sawed-off shotgun. About five minutes elapsed from the

officers’ entry into the home until their discovery of the shotgun. Because the

officers knew it was illegal for M r. Torres-Castro to possess a sawed-off shotgun,

                                          5
they notified Agent Francisco Ortega of the Bureau of Alcohol, Tobacco, and

Firearms (ATF), who arrived at the house shortly thereafter. Before Agent Ortega

arrived, Officer Phel moved M r. Torres-Castro to the bedroom where the gun was

located and attempted to question him. M r. Torres-Castro was uncooperative and

Officer Phel handcuffed him. At that time, Officer Phel arrested M r. Torres-

Castro for possessing an illegal weapon and for charges relating to the

mistreatment of his girlfriend. W hen Agent Ortega arrived at the house, he gave

M r. Torres-Castro M iranda warnings. Thereafter, M r. Torres-Castro made

incriminating statements.

      M r. Torres-Castro moved to suppress the evidence found in his house and

any statements he made to the officers. The district court denied the motion after

an evidentiary hearing. It first held that the protective sweep performed by the

officers violated the Fourth Amendment because the sweep was not performed

incident to an arrest. Notwithstanding, it found that the protective sweep did not

taint any subsequently obtained evidence or statements. The district court

reasoned that the officers had probable cause to arrest M r. Torres-Castro and

question him about weapons based upon independent sources prior to the

protective sweep. It further held that M r. Torres-Castro voluntarily admitted the

officers to his home, consented to a search of the residence, and voluntarily made

incriminating statements.




                                         6
                                    Discussion

A. Protective Sweep

      In M aryland v. Buie, 494 U.S. 325, 327 (1990), the Supreme Court stated

that “a protective sweep is a quick and limited search of premises, incident to an

arrest and conducted to protect the safety of police officers or others.” The Court

held that such protective sw eeps are permitted w hen officers “possess[] a

reasonable belief based on specific and articulable facts which, taken together

with the rational inferences from those facts, reasonably warrant[] the officer in

believing that the area swept harbor[s] an individual posing a danger to the officer

or others.” Id. (internal citations and quotation omitted). A sweep must last no

longer than necessary to dispel the “reasonable suspicion of danger and in any

event no longer than it takes to complete the arrest and depart the premises.” Id.

at 335-36.

      Following Buie, we held that such “protective sweeps” are only permitted

incident to an arrest. See United States v. Davis, 290 F.3d 1239, 1242 n.4 (10th

Cir. 2002) (rejecting an argument that protective sweeps should sometimes be

permitted absent an arrest); United States v. Smith, 131 F.3d 1392, 1396 (10th

Cir. 1997) (noting that a protective sweep “is a brief search of premises during an

arrest to ensure the safety of those on the scene”). In United States v. Garza, an

unpublished disposition, we declined to extend the protective sw eep doctrine to

cases where there is no arrest. See 125 Fed. App’x. 927, 931 (10th Cir. 2005)

                                         7
(“W e have twice found that a protective sw eep may only be performed incident to

an arrest.”). Garza made clear that based on this court’s prior published cases of

Davis and Smith, protective sweeps must be performed incident to an arrest. Id.

      M r. Torres-Castro argues that any expansion of the protective sweep

doctrine is unjustified because the doctrine is premised on the assumption that an

arrest is confrontational by its very nature. M r. Torres-Castro argues that

expanding the doctrine w ill encourage law enforcement to gain legal entry

through “knock and talk” requests and then gather evidence without any

requirement of suspicion or compliance with the Fourth Amendment. W e

recognize that a majority of circuits have extended the protective sweep doctrine

to cases where officers possess a reasonable suspicion that their safety is at risk,

even in the absence of an arrest. See, e.g., United States v. M artins, 413 F.3d

139, 150 (1st Cir. 2005) (“[T]he key is the reasonableness of the belief that the

officers’ safety or the safety of others m ay be at risk.”), cert denied 126 S. Ct.

644 (2005); United States v. M iller, 430 F.3d 93, 100 (2d Cir. 2005) (“The

restriction of the protective sweep doctrine only to circumstances involving

arrests would jeopardize the safety of officers in contravention of the pragmatic

concept of reasonableness embodied in the Fourth Amendment.”); United States

v. Gould, 364 F.3d 578, 584 (5th Cir. 2004) (en banc) (“[W ]e hold that arrest is

not alw ays, or per se, an indispensable element of an in-home protective sweep . .

. .”), cert denied, 543 U.S. 955 (2004).

                                           8
      W e appear to be joined by only the Eighth Circuit and perhaps one panel of

the Ninth Circuit, although there also appears to be an intra-circuit conflict, in our

belief that a protective sweep must be performed incident to an arrest. See United

States v. W aldner, 425 F.3d 514, 517 (8th Cir. 2005) (declining the invitation to

“extend Buie further”); United States v. Reid, 226 F.3d 1020, 1027 (9th Cir.

2000) (refusing to permit a protective sweep where the defendant was not under

arrest); contra United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993)

(permitting a protective sweep after a consented entry). W hatever our view of the

holdings in Davis and Smith, we are not free to overrule those decisions and

adopt the majority view allowing protective sweeps based on reasonable suspicion

alone. See Dubuc v. Johnson, 314 F.3d 1205, 1209 (10th Cir. 2003) (noting that a

panel of this court may not overrule another panel). Instead, we must conclude

that a protective sweep is only valid w hen performed incident to an arrest–at least

until an en banc panel of this court determines otherwise.

      Even under our precedent, however, a search may precede an arrest and still

be incident to that arrest. See Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)

(“W here the formal arrest followed quickly on the heels of the challenged search

[it is not] particularly important that the search preceded the arrest rather than

vice versa.”). W e have followed Rawlings to allow searches of vehicles and

persons prior to an arrest. See United States v. Lugo, 170 F.3d 996, 1003 (10th

Cir. 1999) (search of a vehicle preceding arrest); United States v. Anchondo, 156

                                          9
F.3d 1043, 1045 (10th Cir. 1998) (search of a person preceding arrest). In such

cases, there must be a legitimate basis for the arrest prior to the search, and the

arrest must follow quickly thereafter. Anchondo, 156 F.3d at 1045. There is no

reason why the same rule should not apply to protective sweeps of a residence.

Protective sweeps, wherever they occur, may precede an arrest, and still be

incident to that arrest, so long as the arrest follows quickly thereafter. See United

States v. Donaldson, 793 F.2d 498, 503 (2d Cir. 1986) (holding that a search of an

apartment to secure an individual immediately prior to an arrest was incident to

an arrest).

       The time at which an officer forms the intent to arrest is not determinative.

Anchondo, 156 F.3d at 1045. Instead, to determine whether a search is incident

to an arrest, we ask only (1) whether “a legitimate basis for the arrest existed

before the search,” and (2) whether “the arrest followed shortly after the search.”

Id. Of course, the legitimate basis for an arrest is purely an objective standard

and can be for any crime, not merely that for w hich the defendant is ultimately

charged after the protective sweep. See Lugo, 170 F.3d at 1003 (traffic violations

were a legitimate basis for a search, even though defendant was ultimately

arrested for possession of drugs); see also Brigham City v. Stuart, 126 S. Ct.

1943, 1948 (2006) (action is reasonable under the Fourth Amendment as long as

the objective circumstances justify the action); W hren v. United States, 517 U.S.

806, 813 (1996) (holding that the actual motivations of officers are irrelevant for

                                          10
determining Fourth Amendment reasonableness).

      The primary factor for determining w hether a search is incident to an arrest

is the time between the search and the actual arrest. See Anchondo, 156 F.3d at

1045 (noting that we consider whether the “arrest followed shortly after the

search”); Lugo, 978 F.2d at 634 (a search is incident to an arrest if it is

“contemporaneous” with the arrest). W e note that courts have found that a search

may be incident to an arrest in cases where the search and arrest were separated

by times ranging from five to sixty minutes. See United States v. M cLaughlin,

170 F.3d 889, 891-93 (9th Cir. 1999) (five minutes); United States v. Hrasky, 453

F.3d 1099, 1102-03 (8th Cir. 2006) (sixty minutes).

      In this case, the officers had sufficient probable cause to arrest M r. Torres-

Castro prior to their entry into his home based on his alleged abusive conduct

toward his juvenile girlfriend. Furthermore, the officers possessed the reasonable

suspicion needed to support their protective sweep as required by Buie.

Reasonable suspicion may arise when officers know an occupant has a weapon,

has threatened to use it in an unlawful manner, and may be present in the

residence. United States v. King, 222 F.3d 1280, 1284-85 (10th Cir. 2000). Here,

the officers had information that M r. Torres-Castro possessed a weapon and had

threatened to use it on anyone w ho tried to take his girlfriend aw ay. The officers

visited his home to question him about his treatment of his girlfriend. In fact, M r.

Torres-Castro’s girlfriend was present in the house at the time of the officers’

                                          11
visit. W hile the officers did encounter M r. Torres-Castro in the front room upon

their entry to the home, he was not handcuffed or otherw ise restrained. A

reasonable officer could have feared that once M r. Torres-Castro understood the

nature of the officer’s visit, he might seek to do harm with his weapon.

      Furthermore, the officers did not know the identities of the other

individuals in the house, let alone their relationship to M r. Torres-Castro. The

officers observed several individuals retreat into the back rooms of the house as

they approached. Given the nature of M r. Torres-Castro’s threats to use a

weapon, and the behavior of the other individuals in the home, we think a

“reasonable officer would take precautions to make sure that no hidden threat was

lurking in the house.” See United States v. Hauk, 412 F.3d 1179, 1192 (10th Cir.

2005) (permitting a protective sweep where a second individual was thought to be

present during an arrest for drug crimes).

      The government does not argue that the district court’s analysis was

incorrect; rather, it argues that the court should reconsider its position that a

protective sweep may only be performed incident to arrest and that this protective

sweep would be justified under the expanded view of Buie. Aplee. Br. at 12-15,

18. Given the government’s position on appeal, and because we hold below that

the protective sw eep was not the “but for” cause for the seizure of certain

evidence, and that other evidence would have been inevitably discovered, we need

not resolve the question of w hether the protective sw eep was incident to M r.

                                          12
Torres-C astro’s arrest.

B. Shotgun Shells, Shotgun and Admission of the Shotgun’s Location

      For evidence to be suppressed, M r. Torres-C astro must first demonstrate

that his Fourth Amendment rights were violated. United States v. Nava-Ramirez,

210 F.3d 1128, 1131 (10th Cir. 2000). Assuming, as we do for this portion of the

opinion, that the protective sweep w as not incident to the arrest, M r. Torres-

Castro has established the requisite Fourth Amendment violation. But, M r.

Torres-Castro must also show a “factual nexus between the illegality and the

challenged evidence.” Id. In other w ords, M r. Torres-Castro must show “but for”

causation; that “the evidence sought to be suppressed would not have come to

light but for the government’s unconstitutional conduct.” Id. If evidence is

attributed to a Fourth Amendment violation by this causal relationship, it may be

tainted.

      “But for” causality is a necessary, but not a sufficient, requirement for

suppression. Hudson v. M ichigan, 126 S. Ct. 2159, 2164 (2006). Even if M r.

Torres-Castro can demonstrate that the evidence resulted from the protective

sweep, the government may avoid suppression by demonstrating that the evidence

would have been inevitably discovered, that it was discovered by independent

means, or that it was so attenuated from the illegality as to dissipate any taint

from the Fourth Amendment violation. Nava-Ramirez, 210 F.3d at 1131. In

considering whether evidence seized is so attenuated from the illegality as to

                                         13
dissipate any taint, we balance the “temporal proximity of the Fourth Amendment

violation,” any “intervening circumstances,” and the “purpose and flagrancy of

the official misconduct.” U nited States v. King, 990 F.2d 1552, 1563-64 (10th

Cir. 1993); see also Brown v. Illinois, 422 U.S. 590, 603-04 (1975) (listing the

three factors). If the government can demonstrate inevitable discovery, discovery

by independent means, or attenuation, the evidence is not fruit of the poisonous

tree and need not be suppressed. United States v. DeLuca, 269 F.3d 1128, 1132

(10th Cir. 2001).

      W ith respect to the shotgun and his various statements made to the police,

we conclude that M r. Torres-Castro has not established a factual nexus between

the protective sweep and that evidence. W hile there may be a factual nexus

between the protective sweep and discovery of the shotgun shells, it is apparent

from the district court’s factual findings that the shells would have been

inevitably discovered and, accordingly, should not be subject to suppression.

      Those factual findings plainly support the conclusion that M r. Torres-

Castro voluntarily admitted the officers to his home. The statements from the

girlfriend (involving domestic abuse and a gun) furnished a strong objective basis

for the officers to ask M r. Torres-C astro about the presence of a gun and to

request permission to search his home for it. Likewise, having seen several

individuals move from the front room deeper into the home, we think a reasonable

officer would have asked the same questions and made the same request

                                         14
regardless of a protective sw eep. Even if the officers w ere actually motivated to

question M r. Torres-Castro about the gun because they discovered shells during

the protective sweep, their subjective motivations are irrelevant because the

Fourth Amendment turns on the objective reasonableness of the circumstances.

See United States v. Carson, 793 F.2d 1141, 1149 (10th Cir. 1986) (“[T]he

request itself, even if motivated by the fruits of the prior illegality, is not

exploitation.”). Furthermore, M r. Torres-Castro was cooperative in identifying

the location of the shotgun and in consenting to a search of the home for

weapons. W e find no evidence to suggest that he would have withheld his

consent to search, absent the protective sweep.

      M r. Torres-Castro argues that because he knew the officers discovered

shotgun shells during the protective sw eep, this knowledge was “instrumental in

his consenting to the search for the shotgun,” because he knew “the police had

discovered potentially incriminating evidence.” Aplt. Br. at 38. He relies on

United States v. W ard, 961 F.2d 1526, 1535 (10th Cir. 1992). W ard involved an

illegal seizure of a person on a train, which was followed by that person’s consent

to search. Id. at 1534-35. In W ard, we held that the defendant’s subsequent

consent to search was tainted by the illegal seizure. Id. at 1534-45. In this case,

however, there was no illegal seizure. M r. Torres-Castro voluntarily allowed the

officers into his home. Furthermore, the discovery of the shotgun shells was not

inherently incriminating because the officers did not know at the time that it was

                                           15
illegal for M r. Torres-Castro to possess the shells, the shells could have belonged

to any of the other individuals in the home, and the shells did not indicate that the

shotgun that was subsequently found was an illegal sawed-off shotgun. In

addition, Officer Guevara specifically informed M r. Torres-Castro that he did not

have to reveal the shotgun’s location, further suggesting that the protective sweep

was not the “but for” cause of M r. Torres-Castro’s identification of the location

of the shotgun, consent to search, and immediate discovery of the shotgun. For

these reasons, we reject M r. Torres-Castro’s argument that but for the protective

sweep, the officers would not have asked him about the presence of the shotgun

and would not have obtained his consent to search the house for weapons.

      There does appear to be a factual nexus between the protective sweep and

discovery of the shotgun shells. After all, the shells were located by Officer

Elrick while he conducted the sweep. Regardless of this causal connection,

however, the shells should not be suppressed because they would have been

inevitably discovered. They were located in a clear plastic bag in an open closet

in the bedroom where the shotgun was located. Because they were in plain view ,

the officers would have discovered the shells during their search for the shotgun,

which we have already concluded would have occurred regardless of the

protective sweep. Thus, the doctrine of inevitable discovery excepts the tainted

shells from suppression. See Nava-Ramirez, 210 F.3d at 1131. Because

inevitable discovery is itself an exception to suppression, we need not engage in

                                         16
the balancing of factors that we use to determine attenuation. See id. (treating the

attenuation analysis as distinct and separate from inevitable discovery and

independent source); United States v. Haro-Salcedo, 107 F.3d 769, 773 (10th Cir.

1997) (“The inevitability of discovering evidence by lawful means removes the

taint from evidence first discovered through unlawful means.”) (citing Nix v.

W illiams, 467 U.S. 431, 444 (1984)).

C. Post-A rrest Statements

      M r. Torres-C astro also argues that incriminating statements made after his

formal arrest and M iranda warnings should be suppressed as fruit of the

protective sweep. These statements are subject to the same analysis as the earlier

discovered evidence and M r. Torres-Castro’s statement and consent to search for

the shotgun. See United States v. M aez, 872 F.2d 1444, 1457 (10th Cir. 1989)

(noting that statements made after custodial arrest are still subject to the

exclusionary rule analysis).

      W e conclude that the statements made by M r. Torres-Castro have no “but

for” relationship to the protective sweep, for the same reasons his earlier

statements relating to the shotgun lack such a relationship. In addition, M r.

Torres-Castro’s post-arrest statements were further distanced from the protective

sweep by the additional five to ten minutes it took Agent Ortega to arrive at the

house and begin interviewing M r. Torres-Castro. Furthermore, by the time Agent

Ortega began his questioning, M r. Torres-Castro had twice been warned that he

                                          17
could refuse to answer questions, once by Officer Guevara, and once by Agent

Ortega via a M iranda warning. A M iranda warning itself may be a significant

intervening circumstance that can break any factual nexus between an illegal

search and subsequent incriminating statement. See Oregon v. Elstad, 470 U.S.

298, 310-11 (1985) (noting that a careful administration of M iranda warnings can

“cure the condition that rendered the [earlier] unwarned statement inadmissible”).

Here, Agent Ortega administered such a warning. He arrived on the scene after

the protective sw eep and discovery of the shotgun, and thus his warning to M r.

Torres-Castro was even more of an intervening act than the earlier one given by

Officer Guevara. Nevertheless, the encounter between M r. Torres-Castro and the

officers had been largely consensual up to Agent Ortega’s arrival. Accordingly,

we see no basis to conclude that the protective sweep was the “but for” cause of

the later incriminating statements.

      A FFIR ME D.




                                        18
