     Case: 09-10499     Document: 00511026198          Page: 1    Date Filed: 02/12/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 12, 2010
                                     No. 09-10499
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BRANDON EUGENE GETACHEW,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:08-CR-163-1


Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
        Brandon Eugene Getachew pleaded guilty to possession with intent to
distribute 50 grams or more of cocaine, possession of a firearm by a convicted
felon, and possession of a firearm in furtherance of a drug-trafficking offense.
See 18 U.S.C. §§ 922, 924; 21 U.S.C. § 841. He was sentenced, inter alia, to 211
months’ imprisonment.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                No. 09-10499

      Pursuant to his conditional plea agreement, Getachew appeals the denial
of his suppression motion. He maintains: Officers did not confront exigent
circumstances when they entered his residence; the protective sweep was
unlawful; and, the district court erred in admitting a firearm into evidence under
the independent-source doctrine.
      In reviewing denial of a suppression motion, findings of fact are reviewed
for clear error; questions of law, de novo. United States v. Hearn, 563 F.3d 95,
101 (5th Cir.), cert. denied, 130 S. Ct. 227 (2009). The facts underlying the
denial are viewed in the light most favorable to the prevailing party—in this
instance, the Government. United States v. Runyan, 290 F.3d 223, 234 (5th Cir.
2002).   The district court’s determinations of exigent circumstances and of
sufficient danger to justify a protective sweep are factual findings reviewed for
clear error. E.g., United States v. Troop, 514 F.3d 405, 409 (5th Cir. 2008)
(exigent circumstances); United States v. Watson, 273 F.3d 599, 603 (5th Cir.
2001) (protective sweep). Its application of the independent-source doctrine is
reviewed in two parts: its conclusion that the subsequently-obtained search
warrant was supported by probable cause without the tainted evidence is
reviewed de novo; its determination of whether an illegal search motivated the
procural of the warrant is reviewed for clear error. United States v. Hassan, 83
F.3d 693, 697 (5th Cir. 1996).
      The district court did not clearly err in finding exigent circumstances.
Officers arrived at Getachew’s residence within minutes of being dispatched to
a robbery in progress. They were told a victim had seen men inside the house
with guns. The Officers were also told two cars fled the area, but they did not
know whether other suspects were still in the house. When the Officers arrived,
they found Getachew bound in flexicuffs.
      Although Getachew contends the Officers should have relied on his
statement that he did not believe anyone else was in the house, our court will
not second guess the Officers’ judgment in considering the risks involved. See

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                                 No. 09-10499

United States v. Menchaca-Castruita, 587 F.3d 283, 290 (5th Cir. 2009).
Further, the residence’s front door had been broken down; Getachew was still
bound in flexicuffs; and, Getachew told the Officers that some of the robbers had
gone up to the residence’s second floor. In the light of the evidence, the district
court did not clearly err in finding it was reasonable for Officers to enter the
house.
      Getachew asserts that the Officers’ initial sweep of his residence was not
conducted to protect the safety of police officers or others but to discover
evidence of a crime. He concedes that his second contention—that the sweep
was unlawful because it was not incident to arrest—is foreclosed by our
precedent.   See United States v. Gould, 364 F.3d 578, 584 (5th Cir. 2004) (en
banc) (“[I]n the in-home context it appears clear that even without an arrest
other circumstances can give rise to equally reasonable suspicion of equally
serious risk of danger of officers being ambushed by a hidden person . . . .”).
      “The protective sweep doctrine allows government agents, without a
warrant, to conduct a quick and limited search of premises for the safety of the
agents and others present at the scene .” United States v. Mendez, 431 F.3d 420,
428 (5th Cir. 2005).    As discussed supra, the Officers lawfully entered the
residence for a legitimate law-enforcement purpose, and they had a reasonable,
articulable suspicion that the area to be swept contained a person posing a
danger to those on the scene. With one exception (a firearm observed in a
kitchen drawer), the protective sweep was limited to a cursory inspection of only
those spaces where a person may hide, and the sweep was concluded once the
rooms in the residence had been checked. The district court did not clearly err
in finding sufficient danger existed to justify a protective sweep.
      The Officers did exceed the scope of the protective sweep by opening the
above-referenced kitchen drawer, thereby observing a firearm. The district
court, however, did not err in determining that the firearm was nevertheless
admissible under the independent-source exception to the exclusionary rule. See

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Runyan, 290 F.3d at 235. The Officer who executed the warrant testified: the
warrant was based on the responding Officers’ plain-view observations of scales
and marijuana residue, as well as the very strong marijuana odor in the
residence.   In addition, there was no reference to the firearm in the affidavit
supporting the search warrant. The Government therefore established: the
Officers would have sought a warrant in the absence of the illegal search; and,
the warrant would still have been issued because it was supported by ample
probable cause. See id.
      AFFIRMED.




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