                       UNITED STATES, Appellee
                                  v.
                    Levi A. KEEFAUVER, Specialist
                         U.S. Army, Appellant

                            No. 15-0029
                   Crim. App. Dkt. No. 20121026
       United States Court of Appeals for the Armed Forces

                        Argued April 15, 2015
                        Decided June 12, 2015

RYAN, J., delivered the opinion of the Court, in which BAKER
C.J., and ERDMANN, STUCKY, and OHLSON, JJ., joined.

                                 Counsel

For Appellant: Captain Patrick J. Scudieri (argued); Lieutenant
Colonel Jonathan F. Potter, Colonel Kevin Boyle, and Major Amy
E. Nieman (on brief).

For Appellee: Captain Benjamin W. Hogan (argued); Major A. G.
Courie III and Colonel John P. Carrell (on brief); Major Daniel
Derner.

Amicus Curiae for Appellant: Curtis J. Hinca (law student)
(argued); Catherine E. White (law student) and Steven H. Wright,
Esq. (supervising attorney) (on brief) - University of Wisconsin
Law School.

Amicus Curiae for Appellee: Veronica Sustic (law student)
(argued); Jake Blair (law student) and John A. Pray, Esq.
(supervising attorney) (on brief) - University of Wisconsin Law
School.

Military Judges:    Timothy Grammel and Steven Walburn

       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Keefauver, No. 15-0029/AR


     Judge RYAN delivered the opinion of the Court.

     A military judge sitting as a general court-martial

convicted Appellant, contrary to his pleas, of two

specifications of violating of a lawful general regulation by

wrongfully possessing drug paraphernalia and unregistered

weapons on post, one specification of wrongful possession of

marijuana, and one specification of child endangerment in

violation of Articles 92, 112a, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a, 934 (2006).

Appellant was sentenced to a bad-conduct discharge, four years’

confinement, forfeiture of all pay and allowances, and reduction

to the grade of E–1.     The convening authority approved the

sentence as adjudged.

     The United States Army Court of Criminal Appeals (ACCA)

reviewed the case pursuant to Article 66, UCMJ, 10 U.S.C. § 866

(2012), and affirmed.1    United States v. Keefauver, 73 M.J. 846,

848, 858 (A. Ct. Crim. App. 2014).     We granted Appellant’s

petition to review the following issue only:

     WHETHER THE ARMY COURT ERRED IN FINDING THE PROTECTIVE
     SWEEP WAS APPROPRIATE IN TOTAL.



1
  Oral argument in this case was heard at University of Wisconsin
Law School, Madison, Wisconsin, as part of the Court’s “Project
Outreach.” See United States v. Mahoney, 58 M.J. 346, 347 n.1
(C.A.A.F. 2003). This practice was developed as part of a
public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.


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United States v. Keefauver, No. 15-0029/AR


     We hold that the military judge and ACCA erred in upholding

the protective sweep.   As both the evidence in support of the

bulk of the charges and the entirety of the ACCA’s opinion are

inextricably intertwined with the protective sweep of

Appellant’s home, we reverse the ACCA and remand for further

proceedings consistent with this opinion.

                              I.   FACTS

     On December 8, 2011, between 7:30 a.m. and 7:45 a.m.,

postal inspectors at the Louisville, Kentucky, postal processing

center notified Inspector Steven Lamp in Bowling Green,

Kentucky, that they had discovered a suspicious, heavily taped

box that smelled of marijuana.     They transported the package to

Bowling Green, where Inspector Lamp determined, based on his

training and experience, that the box, measuring fifteen inches

by twelve inches by ten inches and weighing eight pounds, likely

contained marijuana.    He determined that no one by the sender’s

name, “B. Samuelson,” currently resided at the California return

address, but that Appellant and his wife, to whose joint

residence the package was addressed, had previously claimed that

California address as their own.       Because the package was

addressed to a Fort Campbell address, Inspector Lamp notified

the Criminal Investigation Command (CID) office’s Drug

Suppression Team Chief, Special Agent (SA) Steven Roche.         At SA

Roche’s request, Inspector Lamp and two other inspectors


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United States v. Keefauver, No. 15-0029/AR


transported the package to Fort Campbell, joining SA Roche at

CID by late morning.

     At approximately 11:00 a.m., SA Roche obtained verbal

authorization from Captain (CPT) Mark Robinson, the military

magistrate, to conduct a “controlled delivery,” whereby a postal

inspector would pose as the regular mail carrier and agents

would enter the house after the package was taken inside to

seize the box and search the room or immediate area in which it

was found.2   At approximately 1:00 p.m. at CID, a military

working dog (MWD) “alerted on the box,” confirming it likely

contained a controlled substance.    Agents took the package from

CID to the Fort Campbell Post Office, where it was scanned as

having arrived at 1:14 p.m.   SA Roche then arranged for

surveillance teams in front of and behind Appellant’s house as

well as down the street.

     Agents knew four persons lived at the address -- Appellant;

his wife; his sixteen-year-old stepson, TC-D; and his thirteen-

year-old son, EK -- but that none had been seen entering or

exiting since surveillance began.    They also knew that no one at

the address had a firearm registered in his or her name.


2
  The confusion over the exact terms and parameters of CPT
Robinson’s verbal authorization at trial highlights the danger
of using a verbal rather than a written authorization to search.
The record supports the military judge’s finding that the
authorization was limited to the box itself. United States v.
Burris, 21 M.J. 140, 144 (C.M.A. 1985).


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United States v. Keefauver, No. 15-0029/AR


     A postal investigator made the controlled delivery at 2:36

p.m., first knocking on the door, then, when no one answered,

leaving the package on the porch next to the front door.   The

package remained on the porch until TC-D arrived home at 3:20

p.m. and took it inside.   Shortly thereafter, CID agents and

postal inspectors moved in, knocking on the front door.    When

TC-D answered the door, agents informed him that they would be

conducting a search.   In response, TC-D became verbally abusive.

Agents asked TC-D to step outside, where they handcuffed him and

seated him next to the garage.   SA Roche entered the home and

found the package in the hallway, ten feet from the entrance.

He noticed a strong odor of marijuana in the house.3   SA Roche

conducted what he characterized as a “security sweep” of the

entire house.   While sweeping the kitchen, SA Roche saw drug

paraphernalia on the counter.    On the second floor, SA Roche

discovered a bag of what appeared to be marijuana as well as

additional drug paraphernalia in TC-D’s room, rifles in an

unlocked walk-in closet off the hallway, and suspicious boxes in

the master bedroom, all in plain view.   Based on a

misunderstanding of the verbal search authorization, agents then


3
  We did not grant the issue, and do not decide the question,
whether it was improper for the ACCA to consider evidence that
agents smelled marijuana in the house, which evidence was not
before the military judge when he ruled on the motion to exclude
evidence from the protective sweep. Resolution of that question
does not affect the outcome in this case.


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United States v. Keefauver, No. 15-0029/AR


reentered the house and conducted a second, full search of the

home with MWDs.

     Before trial, Appellant moved to suppress all evidence

other than the box of marijuana on the grounds that the search

authorization to seize it was defective in relation to the

search of his home.   Appellant argued that the authorization to

do anything other than seize the package inside his home was not

based on probable cause, as the package was addressed to the

residence rather than its residents, and, moreover, that the

authorization failed to describe the place to be searched and

things to be seized with requisite particularity.   Applying a

standard echoing Maryland v. Buie, 494 U.S. 325, 334 (1990), the

military judge denied the motion on the ground that the evidence

resulting from “the continued search of the house . . . beyond

what the magistrate had authorized” after the protective sweep

“would have inevitably been discovered,” as “there was

overwhelming evidence to support a request for search

authorization” based on the box’s delivery plus the “marijuana,

drug paraphernalia, and weapons in that residence” seen during

the protective sweep.   In his view, the protective sweep was

proper because agents could reasonably have believed “an

individual or individuals who posed a danger to the agents may

have been hiding in the residence” given the quantity of

marijuana present and the inference that residents were engaging


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United States v. Keefauver, No. 15-0029/AR


in drug distribution, as “[i]t is common knowledge that drug

trafficking involves violence, including the use of weapons.”

The military judge concluded that TC-D’s hostile response to the

agents’ announced intent to enter the house and conduct a search

supported this belief.

                         II.   ACCA DECISION

     The ACCA affirmed the ruling of the military judge that the

protective sweep was valid under Buie based on the facts that

the package containing marijuana was taken inside the home;

Appellant, his wife, and their two sons lived there; agents’

lack of information about the adults’ whereabouts; and TC-D’s

reaction to the agents’ presence.      Keefauver, 73 M.J. at 853-54.

Moreover, the ACCA determined that expert testimony on the

suppression motion from Inspector Lamp asserting that “guns

follow drugs,” while it could not per se authorize a protective

sweep, could be considered by the military judge in conjunction

with the other facts.    Id. at 853.    The ACCA went on to hold

that evidence from the later post-sweep search of Appellant’s

house using MWDs was properly admitted under the inevitable

discovery doctrine because the drugs, weapons, and drug

paraphernalia observed during the protective sweep provided

agents with probable cause to seek a wider warrant.     Id. at

854-57.




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United States v. Keefauver, No. 15-0029/AR


                           III.   DISCUSSION

     “When reviewing a decision of a Court of Criminal Appeals

on a military judge’s ruling, ‘we typically have pierced through

that intermediate level’ and examined the military judge’s

ruling, then decided whether the Court of Criminal Appeals was

right or wrong in its examination of the military judge's

ruling.”    United States v. Cabrera-Frattini, 65 M.J. 241, 246

(C.A.A.F. 2007) (quoting United States v. Shelton, 64 M.J. 32,

37 (C.A.A.F. 2006)) (quoting United States v. Siroky, 44 M.J.

394, 399 (C.A.A.F. 1996)) (internal quotation marks omitted).

This Court reviews a military judge’s decision to suppress

evidence for an abuse of discretion.     United States v. Monroe,

52 M.J. 326, 330 (C.A.A.F. 2000) (citing United States v. Ayala,

43 M.J. 296, 298 (1995)).    Fact-finding is reviewed under the

clearly erroneous standard while conclusions of law are reviewed

de novo.    Id.   “[W]e consider the evidence in the light most

favorable to the prevailing party.”     United States v. Reister,

44 M.J. 409, 413 (C.A.A.F. 1996) (internal quotation marks

omitted).   Whether facts in toto justify a protective sweep is a

question of law.    See United States v. Scroggins, 599 F.3d 433,

440-41 (5th Cir. 2010); United States v. Cash, 378 F.3d 745, 747

(8th Cir. 2004); United States v. Gould, 364 F.3d 578, 592 n.16

(5th Cir. 2004), abrogated on other grounds by Kentucky v. King,

131 S. Ct. 1849 (2011).    But see United States v. Hauk, 412 F.3d


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United States v. Keefauver, No. 15-0029/AR


1179, 1185 (10th Cir. 2005) (mixed question of law and fact

reviewed de novo).

     While we agree that the analysis in Buie may be properly

applied to a protective sweep incident to execution of a search

warrant for a home, we disagree that either of the two criteria

that Buie established were satisfied by the facts of this case.

                                  A.

     The right of the people to be secure in their persons,
     houses, papers, and effects, against unreasonable searches
     and seizures, shall not be violated, and no Warrants shall
     issue, but upon probable cause, supported by Oath or
     affirmation, and particularly describing the place to be
     searched, and the persons or things to be seized.

U.S. Const. amend. IV.     In Buie, the Supreme Court created an

exception to the Fourth Amendment for a “protective sweep,”

which is “a quick and limited search of premises, incident to

arrest and conducted to protect the safety of police officers or

others.”   494 U.S. at 327.   Buie acknowledged two types of

protective sweeps.   In the first type of sweep, which may be

conducted “as a precautionary matter and without probable cause

or reasonable suspicion,” agents may search only “closets and

other spaces immediately adjoining the place of arrest from

which an attack could be immediately launched” during or after

an arrest.   Id. at 334.    The second, more extensive Buie

exception permits agents to make a protective sweep of areas

beyond those immediately adjoining the place of arrest where




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United States v. Keefauver, No. 15-0029/AR


“articulable facts . . . taken together with the rational

inferences from those facts . . . would warrant a reasonably

prudent officer in believing that the area to be swept harbors

an individual posing a danger to those on the arrest scene.”

Id.   “[S]uch a protective sweep, aimed at protecting the

arresting officers, if justified by the circumstances, is

nevertheless not a full search of the premises, but may extend

only to a cursory inspection of those spaces where a person may

be found.”    Id. at 335.

      Buie analyzed the constitutional permissibility of a

protective sweep in the context of arrest only, reasoning that

in-home arrests create special dangers by placing agents on an

“adversary’s ‘turf’” and exposing them to the unique threat of

“[a]n ambush in a confined setting of unknown configuration.”

Id. at 333.    The Court noted, “[a] protective sweep . . . occurs

as an adjunct to the serious step of taking a person into

custody for the purpose of prosecuting him.”     Id.

      This Court has not elsewhere addressed the question whether

the protective sweep doctrine applies beyond the context of an

in-home arrest.    Cf. United States v. Khamsouk, 57 M.J. 282, 304

(C.A.A.F. 2002).   However, a majority of federal circuit courts

have held that agents entering a home lawfully for an objective

other than arrest may make a protective sweep so long as the

Buie criteria are met.      In their view, the same concerns


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United States v. Keefauver, No. 15-0029/AR


underlying officer safety in the context of an in-home arrest

may pertain in equal measure when agents lawfully enter a home

for some other purpose.   See, e.g., United States v. Starnes,

741 F.3d 804, 810-11 (7th Cir. 2013); United States v.

Caraballo, 595 F.3d 1214, 1225 (11th Cir. 2010); United States

v. Miller, 430 F.3d 93, 99-100 (2d Cir. 2005); United States v.

Martins, 413 F.3d 139, 150 (1st Cir. 2005); Leaf v. Shelnutt,

400 F.3d 1070, 1086-87 (7th Cir. 2005); Gould, 364 F.3d at 584;

United States v. Taylor, 248 F.3d 506, 513 (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),

abrogated on other grounds by United States v. Webb, 255 F.3d

890 (D.C. Cir. 2001).   Only the Tenth Circuit and one panel of

the Ninth Circuit have read Buie so narrowly as to limit the

protective sweep doctrine to in-home arrests only.   See United

States v. Davis, 290 F.3d 1239, 1242 n.4 (10th Cir. 2002);

United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000).

These cases place great interpretive weight on Buie’s focus on

in-home arrests, 494 U.S. at 333-36, and its definition of a

protective sweep as “incident to an arrest.”   Id. at 327.

     Without question, the minority view is correct that Buie

specifically addressed only the facts of that case, surrounding

a protective sweep incident to an in-home arrest.    This does

not, however, preclude application of Buie’s rationale to other


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United States v. Keefauver, No. 15-0029/AR


circumstances when consonant with, and a consistent extension

of, Buie.   See Miller, 430 F.3d at 99 (“Buie’s logic therefore

applies with equal force when officers are lawfully present in a

home for purposes other than the in-home execution of an arrest

warrant . . . .”).   We agree with the majority of federal

circuits that, as with an arrest, executing a search warrant in

a home can present the dangers upon which the rationale of Buie

was based, as it, too, places agents on the occupant’s “turf,”

at a disadvantage, and is an adjunct to a “serious step,” since

probable cause to conduct a search for evidence has been

established and may result in arrest and prosecution.   Buie, 494

U.S. at 333.

                                B.

     While we thus squarely hold that, under Buie, agents

entering a home lawfully may be entitled to make the second,

more extensive type of protective sweep to ensure their safety,

this extension of Buie to non-arrest situations should not be

mistaken for a liberalization of the criteria required before

such a sweep is constitutionally permissible.   The fact that

agents may conduct a protective sweep incident to a lawful entry

under Buie so long as the sweep does not last longer “than is

necessary to dispel the reasonable suspicion of danger,” id. at

336, does not answer the altogether different question whether

any facts supported the belief that there were people other than


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United States v. Keefauver, No. 15-0029/AR


TC-D present in the home in this case and, if so, that they

presented a danger to the agents.     We conclude that the facts

here did not and that, absent such facts, the extensive

protective sweep conducted of the entire home was not warranted.

     The circumstances under which facts warrant an extensive

protective sweep are specific.   Id. at 327, 334.    Buie notes

that this broader protective sweep exception applies only “if

the searching officer ‘possess[ed] a reasonable belief based on

“specific and articulable facts which, taken together with the

rational inferences from those facts, reasonably warrant[ed]”

the officer in believing’ that the area swept harbored an

individual posing a danger to the officer or others.”    494 U.S.

at 327 (quoting Michigan v. Long, 463 U.S. 1032, 1049–50 (1983))

(quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)) (brackets in

original) (emphasis added); see United States v. Ford, 56 F.3d

265, 269 n.3 (D.C. Cir. 1995) (interpreting Buie to require the

lower court to determine “whether the searching officer

possessed ‘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’” on remand).    The opinion

goes on to test this belief against an objective standard,

requiring also that “articulable facts . . . taken together with

the rational inferences from those facts . . . would warrant a

reasonably prudent officer in believing that the area to be


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United States v. Keefauver, No. 15-0029/AR


swept harbors an individual posing a danger to those on the

arrest scene.”   Buie, 494 U.S. at 334 (emphasis added).    The

objective standard echoes Terry.     392 U.S. at 21-22 (noting “it

is imperative that the facts [used to justify a search or

seizure] be judged against an objective standard:    would the

facts available to the officer at the moment of the seizure or

the search ‘warrant a man of reasonable caution in the belief’

that the action taken was appropriate?”).    See, e.g., Miller,

430 F.3d at 98 (“At the core of Terry, Long and Buie is the

common understanding that the Fourth Amendment's reasonableness

requirement is sufficiently flexible to allow officers who have

an objectively credible fear of danger to take basic precautions

to protect themselves.”); United States v. Garza, 125 F. App’x

927, 931 (10th Cir. 2005) (“The Fourth Amendment allows a

protective sweep if police have ‘a reasonable belief based on

specific and articulable facts which, taken together with the

rational inferences from those facts, reasonably warrant[s] the

officer in believing that the area swept harbor[s] an individual

posing a danger to the officer or others.’” (alterations in

original) (internal citations and quotation marks omitted));

United States v. Biggs, 70 F.3d 913, 915 (6th Cir. 1995)

(requiring searching agents to “articulate facts that would

warrant a reasonably prudent officer to believe that the area to




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United States v. Keefauver, No. 15-0029/AR


be swept harbored an individual posing a danger to those on the

scene”).

        It is thus eminently clear both that a protective sweep of

the home “is decidedly not ‘automati[c],’” Buie, 494 U.S. at

336, and that the facts in this case fails the test laid out in

Buie.     A protective sweep of the home requires specific,

articulable facts and rational inferences from those facts

supporting two beliefs:    (1) that the areas to be swept harbor

one or more individuals and (2) that the individual or

individuals pose a danger to the agents or others.    Id. at 334.

The Government did not attempt to prove that the searching

officer held either such belief, nor did it present facts and

inferences that would objectively support either such belief.

        The searching officer, SA Roche, did not testify that he

believed at any point that additional individuals were present

and dangerous.    Rather, in perfect opposition to Buie’s caution

against “automatic” sweeps, SA Roche stated the sweep was

“standard procedure.”    While an officer’s mistake of law may

sometimes bear on a potential Fourth Amendment violation, Heien

v. North Carolina, 135 S. Ct. 530 (2014), that is not the case

here.    “The Fourth Amendment tolerates only reasonable mistakes,

and those mistakes . . . must be objectively reasonable.”     Id.

at 539.    Unlike the North Carolina statute at issue in Heien,

id. at 540, Buie’s requirements and its prohibition against


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United States v. Keefauver, No. 15-0029/AR


automatic sweeps are unambiguous.     Any mistake of law on the

part of SA Roche was not objectively reasonable.    Moreover, in

Heien, the officer’s “mistake of law relate[d] to the antecedent

question of” reasonable suspicion for a stop, not the search

itself, which was done with the appellant’s consent.    Id. at

539.   “An officer’s mistaken view that the conduct at issue did

not give rise to . . . a [Fourth Amendment] violation -- no

matter how reasonable -- could not change that ultimate

conclusion.”   Id.

       And assuming arguendo that SA Roche had testified to an

articulable actual fear, we disagree with both the military

judge and the ACCA that the facts presented, even viewed in the

light most favorable to the Government, objectively supported a

protective sweep of the home.   Rather, the available facts

supported only the reasonable inference that no one but TC-D was

home that afternoon:   Appellant was employed on base; no one

testified that they saw anyone enter or exit the home during a

period of surveillance of at least one hour prior to the

delivery of the package; no one answered the door prior to TC-

D’s arrival, id.; and an eight-pound package containing a

valuable, illicit substance was left outside for an hour.     And

during the motions hearing, Inspector Lamp in fact testified to

his own inference from these facts that “nobody was home.”    In

this context, lack of knowledge of the other inhabitants’


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United States v. Keefauver, No. 15-0029/AR


whereabouts did not provide an affirmative basis for conducting

a protective sweep.   See United States v. Colbert, 76 F.3d 773,

778 (6th Cir. 1996); United States v. Hogan, 38 F.3d 1148, 1150

(10th Cir. 1994); see also United States v. Delgadillo–

Velasquez, 856 F.2d 1292, 1298 (9th Cir. 1988).

     Given the absence of facts supporting the antecedent belief

required by the first prong of Buie, that there was another

person present in the home, 494 U.S. at 334, the second prong of

Buie, which requires articulable facts supporting the belief

that the “individual pos[es] a danger to those on the arrest

scene,” id., necessarily fails.     We nonetheless make clear that,

contrary to the belief of the military judge, the presence or

suspected presence of drugs without more does not justify a

sweep, see, e.g., United States v. Watson, 273 F.3d 599, 603

(5th Cir. 2001), nor does the bare conjecture and bald assertion

that “guns follow drugs,” without additional facts.     See Taylor,

248 F.3d at 514 (citing United States v. Hatcher, 680 F.2d 438,

444 (6th Cir. 1982)).   To suggest, as the military judge did,

that the mere presence of drugs justifies a protective sweep of

the entire home would effectively eviscerate the exception to

the Fourth Amendment contemplated by Buie, which was based

entirely on the danger to agents.      494 U.S. at 327, 333-34.   We

decline to create so broad an exception to the Fourth Amendment.




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     The Government nonetheless argued at oral argument that a

verbally hostile teenager and the odor of marijuana alone

justified a rational inference both that other people were

present and that they presented a danger to agents.   We cannot

agree.    In light of the other facts suggesting no one else was

home, TC-D’s adverse reaction to officers’ stated intention to

search without more did not support a reasonable inference that

other individuals were present, nor, even if they were, that

they presented a danger to agents.4   TC-D was quickly handcuffed

and removed from the house, and he presented no danger to

agents.   Nor, even were we to consider it, does the lingering

odor of marijuana smoke, without more, support a belief that

others were present.

     Most tellingly, even if one credits the notion that a

hostile teenager and the smell of marijuana could create a

reasonable inference that others were present under the facts of

this case, absolutely no facts supported an inference of a

potential for danger or violence, as has been true in other

cases in which protective sweeps have been upheld.    Agents

neither knew of nor encountered unsecured pit bulls, Starnes,

741 F.3d at 806-07; no Lincoln Navigators linkable to known gang

4
  Although TC-D’s statements could have alerted another person to
the officers’ presence and intent to search, leading to an
attempt to destroy evidence, the potential destruction of
evidence is not a justification for a Buie sweep, which is
permissible only for safety reasons. 494 U.S. at 327.


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United States v. Keefauver, No. 15-0029/AR


members were parked outside the home, United States v. Tapia,

610 F.3d 505, 507 (7th Cir. 2010), as amended on denial of

reh’g, No. 09-1426, 2010 U.S. App. LEXIS 27517, at *1 (7th Cir.

Aug. 16, 2010); and no recent and unexplained gunfire was likely

to either alert anyone present and potentially dangerous that

agents might soon arrive or cause them to otherwise be on alert.

United States v. Parrott, 450 F. App’x 228, 230 (3d Cir. 2011);

United States v. Tisdale, 921 F.2d 1095, 1097 (10th Cir. 1990).

Rather, the inverse is true:   Appellant lived on a military

base, not in a high-crime neighborhood or within a known gang

war zone, even were such a setting enough to justify this

exception to the Fourth Amendment, a question on which we

express no opinion.   See generally United States v. Martins, 413

F.3d 139, 150 (1st Cir. 2005) (holding agents could consider

area to justify sweep where “the inference of danger was much

more real and immediate than a generic fear of what might happen

in a high-crime area”); United States v. Atlas, 94 F.3d 447,

450-51 (8th Cir. 1996) (upholding a protective sweep in a

“dangerous neighborhood, one that was high in gang activity” and

noting “an area’s propensity toward criminal activity is

something that an officer may consider” along with other factors

(citation omitted)); United States v. Burrows, 48 F.3d 1011,

1016 (7th Cir. 1995) (holding that while “[a] protective sweep

is not justified simply because an area is ‘poor’ or a ‘housing


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United States v. Keefauver, No. 15-0029/AR


project’” the area may be relevant where it “has been the recent

scene of other violence or civil strife aimed at law enforcement

officers” or “there are other articulable reasons for believing

that . . . the area presents a real threat”); United States v.

Richards, 937 F.2d 1287, 1291 (7th Cir. 1991) (upholding a

protective sweep of an apartment in “one of the most violent and

dangerous [neighborhoods] in East St. Louis” where the

reputation of the area was one of several factors).   The

rational inference for agents to make about a home on a military

base would be of safety, rather than risk.

     The ACCA erred in affirming the holding of the military

judge with respect to the protective sweep.   As our holding

eliminates the basis on which the ACCA found probable cause

existed to conduct the MWD search of the house after the sweep,

any review of the inevitable discovery doctrine must be

undertaken without respect to the fruits of the sweep.    Although

we did not grant, and thus do not decide, the question of the

application of the inevitable discovery doctrine to the

remaining evidence, we stress that “the inevitable discovery

doctrine cannot rescue evidence obtained via an unlawful search

simply because probable cause existed to obtain a warrant when

the government presents no evidence that the police would have

obtained a warrant.”   United States v. Wicks, 73 M.J. 93, 103

(C.A.A.F. 2014) (internal quotation marks omitted).


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United States v. Keefauver, No. 15-0029/AR


                           IV.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is reversed.   The record of trial is returned to the

Judge Advocate General for remand to that court for further

action consistent with our resolution of the granted issue.




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