                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               JUL 2 2003
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellant,

 v.                                                         No. 02-4022
                                                             (D. Utah)
 KENT NELSON THOMPSON,                                (D.Ct. No. 00-CR-318C)

          Defendant-Appellee.



                              ORDER AND JUDGMENT *


Submitted on the briefs. **

Paul M. Warner, United States Attorney, and Wayne T. Dance, Assistant United
States Attorney, Salt Lake City, Utah, for Plaintiff-Appellant.

Stephanie Ames, and Gregory G. Skordas, Salt Lake City, Utah, for Defendant-
Appellee.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

      **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and
BRISCOE, Circuit Judge.



      Appellee Kent Nelson Thompson was indicted by a federal grand jury on

four counts of being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). Mr. Thompson moved to suppress evidence obtained when law

enforcement agents searched his home for a third party fugitive. After

evidentiary hearings and oral argument, the district court granted the motion. On

appeal, the government challenges this ruling. We exercise jurisdiction pursuant

to 18 U.S.C. § 3731 and affirm.



Factual Background

      Federal Bureau of Investigation agents received information from a county

sheriff’s deputy that Ronald Baldwin, a fugitive, was presently at a Salt Lake City

home. The agents confirmed Mr. Baldwin had outstanding arrest warrants for

violating parole supervision. Their review of Mr. Baldwin’s criminal history

revealed drug offenses, parole violations, and assaults.



      Two agents went to the house to gather more information. While

surveilling the house, they observed Mr. Baldwin exit the garage, walk to the

curb, and then re-enter the house. The agents also saw a man, later identified as

                                        -2-
Mr. Thompson, leave the house.



      Having confirmed Mr. Baldwin’s presence at the home, eight to ten agents

set up a perimeter around the property to execute the arrest warrant and prevent

Mr. Baldwin from escaping. Shortly after their arrival, they apprehended a man

as he tried to flee the house. The man told the agents several people were still

inside and provided a phone number to the house. The agents made a number of

phone calls to the home requesting that everyone inside exit with their hands up.

Several people came out of the house, but Mr. Baldwin remained inside.



      At some point during the stand-off, Mr. Thompson returned to the house.

He angrily informed the agents the house was his and asked what was happening.

Mr. Thompson indicated Mr. Baldwin was inside the home. He also said there

was a loaded .357 handgun in the vest of a jacket in the closet and a single shot

.22 caliber pistol in a large, unlocked gun safe. Mr. Thompson assisted the agents

in diagraming the layout of the house, indicating the location of the weapons and

potential hiding places large enough for a person. The agents did not obtain Mr.

Thompson’s permission to search the house, nor did they get a search warrant for

the house. At this point, none of the agents knew Mr. Thompson was a felon.




                                         -3-
         About two hours after setting up the perimeter, the agents called a special

weapons and tactics team. The agents called the team because Mr. Baldwin had a

dangerous criminal history, had access to firearms, and was barricaded inside the

house.



         Using the information Mr. Thompson provided, the special weapons and

tactics team entered the house. In the basement, they observed the large gun safe

Mr. Thompson described. The safe door was ajar. The agents opened it further

and observed firearms in the safe. The team eventually found Mr. Baldwin in the

basement, hiding in a pile of laundry.



         The agents took Mr. Baldwin into custody, then re-entered the house. They

seized four firearms, including the guns in the safe and the gun Mr. Thompson

described as being in a vest pocket. They also seized ammunition and drug

paraphernalia.



         Based on the firearms found in the house, a grand jury indicted Mr.

Thompson on four counts of possessing a firearm as a previously convicted felon

in violation of 18 U.S.C. § 922(g)(1). Each count involved a separate firearm.




                                           -4-
       Mr. Thompson filed a motion to suppress the firearms. 1 After briefing by

the parties and evidentiary hearings, the district court granted Mr. Thompson’s

motion. In pertinent part, the court held the plain view doctrine, allowing a

limited warrantless seizure, did not apply because the incriminating character of

the firearms was not immediately apparent to the agents. The court also held no

exigent circumstances justified the agents’ second entry into the house and

seizure of the firearms after Mr. Baldwin was in custody.



       The government appeals the district court’s suppression of the firearms,

arguing the search and seizure were permissible under the plain view doctrine

because the criminal nature of the firearms was readily apparent. Alternatively,

the government claims the agents could seize the firearms during their protective

sweep of the house.



Discussion

       “On appeal of a motion to suppress, we accept the district court’s factual

findings unless clearly erroneous and view the evidence in the light most


       1
          Although Mr. Thompson’s motion to suppress sought to exclude “the evidence
obtained at [the home],” the district court later clarified the motion only concerned the
guns. Likewise, this appeal and our decision only concern the admissibility of the
firearms.


                                            -5-
favorable to the prevailing party, here [Mr. Thompson].” United States v. De la

Cruz-Tapia, 162 F.3d 1275, 1277 (10th Cir. 1998). “‘A finding of fact is “clearly

erroneous” if it is without factual support in the record or if [we], after reviewing

all the evidence, [are] left with a definite and firm conviction’” the district court

erred. Manning v. United States, 146 F.3d 808, 812 (10th Cir. 1998) (quoting

Cowles v. Dow Keith Oil & Gas, Inc., 752 F.2d 508, 511 (10th Cir. 1985), cert.

denied, 479 U.S. 816 (1986)). We review legal questions, such as “[t]he ultimate

determination of reasonableness under the Fourth Amendment[,] ... de novo,

considering the totality of the circumstances.” United States v. Dickerson, 195

F.3d 1183, 1186 (10th Cir. 1999). See also United States v. Holt, 264 F.3d 1215,

1228 (10th Cir. 2001) (en banc).



Plain View Doctrine

      The government argues the agents did not violate the Fourth Amendment in

seizing the firearms. It believes the agents properly seized the firearms under the

plain view doctrine because the criminal nature of the firearms was readily

apparent. It claims the record shows “[o]fficers could reasonably infer that [Mr.]

Baldwin knowingly had access to and joint and constructive possession of the

firearms.” Thus, the government believes the district court should not have

suppressed the firearms.


                                          -6-
      In ruling on the motion to suppress, the district court rejected the

government’s plain view theory of this case. The court found “no evidence that

[Mr.] Baldwin ever possessed any of the [firearms].” Thus, the court concluded

there “was no basis to find that the incriminating character of the guns ... was

immediately apparent.” After reviewing the record, we conclude it supports the

district court’s factual findings.



      The Fourth Amendment guarantees “[t]he right of the people to be [free

from] unreasonable searches and seizures.” U.S. Const. amend. IV. “It is a

‘basic principle of Fourth Amendment law’ that searches and seizures inside a

home without a warrant are presumptively unreasonable.” Payton v. New York,

445 U.S. 573, 586 (1980) (citing Coolidge v. New Hampshire, 403 U.S. 443, 474-

75, 477-78 (1971)). Agents may, however, seize evidence without a warrant if it

is in “plain view.” Coolidge, 403 U.S. at 465. An object is in plain view if: (1)

“the officer did not violate the Fourth Amendment in arriving at the place from

which the evidence could be plainly viewed”; (2) the item’s “incriminating

character [was] immediately apparent”; and (3) the officer had “a lawful right of

access to the object itself.” Horton v. California, 496 U.S. 128, 136-37 (1990).

In this instance, we need not address all three factors of the plain view analysis

because we conclude the criminal nature of the firearms was not immediately


                                         -7-
apparent. See id. (holding all three conditions must be present to justify a

warrantless seizure under the plain view doctrine). 2



      “An item’s incriminating nature is immediately apparent if the officer had

probable cause to believe the object was contraband or evidence of a crime.”

United States v. Castorena-Jaime, 285 F.3d 916, 924 (10th Cir. 2002) (quotation

marks and citations omitted). “A seizing officer need not know or have an unduly

high degree of certainty as to the incriminatory character of the evidence under

the plain view doctrine. All that is required is a practical, nontechnical

probability that incriminating evidence is involved.” Id. (quotation marks and

citations omitted).



      The government argues the agents had probable cause to believe Mr.

Baldwin, as a known felon and fugitive, constructively possessed the firearms.

See 18 U.S.C. § 922(g)(1) and (2) (prohibiting a felon or fugitive from possessing

firearms). In this case, it is clear Mr. Baldwin was a known felon and fugitive.

Thus, the question is whether the agents could reasonably believe Mr. Baldwin


      2
         The government also argues the agents met the first factor necessary for a plain
vew seizure because they properly entered the house. Since we are able to reject the plain
view argument solely on the basis the criminal nature of the firearms was not readily
apparent, we offer no opinion as to whether the initial entry was proper.


                                           -8-
constructively possessed the weapons.



      A person has constructive possession of a firearm if he “knowingly holds

the power to exercise dominion or control over the firearm.” United States v.

Heckard, 238 F.3d 1222, 1228 (10th Cir. 2001) (citing United States v. Mills, 29

F.3d 545, 549 (10th Cir. 1994)). “[W]here there is evidence of joint occupancy

[of the area where agents found a weapon], the Government must offer ‘evidence

supporting at least a plausible inference that the [person] had knowledge of and

access to the weapon.’” United States v. Hein Van Tieu, 279 F.3d 917, 922 (10th

Cir. 2002) (quoting Heckard, 238 F.3d at 1228).



      Here, the government argues the agents “could reasonably infer” Mr.

Baldwin had knowledge of and access to the firearms. With respect to Mr.

Baldwin’s access to the firearms, one agent testified Mr. Thompson said Mr.

Baldwin had access to the firearms. Based, in part, on this testimony, the district

court concluded Mr. Baldwin had access to the firearms in the house. On appeal,

Mr. Thompson does not dispute this factual finding. Access alone, however, is

not enough to establish constructive possession. See Mills, 29 F.3d at 550. We

must ask whether there is “evidence to support an inference that [Mr. Baldwin]

was aware of the firearms contained in the [house].” Id. The government directs


                                         -9-
us to several facts it claims support the inference Mr. Baldwin had knowledge of

the firearms. We address each of these facts in turn.



       First, the government points to one agent’s testimony stating he “received

information ... the fugitive knew that there was a firearm inside the house.”

However, this agent was positioned on the south and west sides of the house and

did not directly speak with Mr. Thompson, who had informed the agents about the

firearms in the house. Instead, he received the information about the firearms

from another officer at the scene via radio or cellular telephone. In addition to

this agent’s testimony, the district court heard from the agent who interviewed

Mr. Thompson. The interviewing agent testified Mr. Thompson told him Mr.

Baldwin had access to the firearms, but he did not mention whether Mr.

Thompson told him Mr. Baldwin knew about the firearms. Similarly, another

agent who witnessed Mr. Thompson’s interview did not include anything about

Mr. Baldwin’s supposed knowledge of weapons in his summary of the

conversation. 3 Presented with the testimony of these two other agents with more

direct information, we cannot conclude the district court erred in discounting the


       3
         In its reply brief, the government urges us to find constructive possession based
on “[Mr.] Thompson’s statement that [Mr.] Baldwin knew about the firearms and had
access to them.” As explained above, our own review of the record reveals no evidence
Mr. Thompson ever told agents Mr. Baldwin knew about the firearms.


                                           -10-
testimony of the agent whose only source of information was another officer. See

United States v. Fernandez, 18 F.3d 874, 876 (10th Cir. 1994) (emphasizing “the

credibility of the witnesses and the weight given to the evidence ... are matters for

the trial judge”).



      The government also claims the fact Mr. Baldwin was living in the house

suggests he had knowledge of the firearms. However, the district court

determined “it was not reasonable for law enforcement officers to believe that

[Mr.] Baldwin was a resident of the home.” 4 The government urges us to overturn

the district court’s corresponding finding that “[n]o evidence was offered that

demonstrates [Mr.] Baldwin was a resident of the home.” In furtherance of its

argument, the government points to testimony stating Mr. Thompson told one

agent Mr. Baldwin “was living there.” The government also argues the agents

could infer Mr. Baldwin resided in the house from the fact “local authorities

indicated that [Mr.] Baldwin [was] at the house,” and from the fact Mr. Baldwin

“remained in the house for several hours [while Mr.] Thompson ... was absent.”



      4
         The government briefed, and the district court considered, the issue of Mr.
Baldwin’s residence in the context of whether the government’s initial entry to the house
was permissible. Although our disposition of this case does not require us to address
whether the initial entry was permissible, the government referred to Mr. Baldwin’s
residence in its constructive possession argument, and we therefore consider it now.


                                           -11-
      The record supports the district court’s conclusion it was not reasonable for

agents to believe Mr. Baldwin lived at the house. For example, when asked if he

had “any real information beforehand as to who the owner [was] or who was

living [at the house],” an agent answered, “[n]o, we didn’t. We just had

information that Ronald Baldwin was at that address.” Similarly, when asked if

he was “able to verify who actually resided in the home,” another agent testified

he received information verifying Mr. Thompson was residing at the home, but

notably did not mention having information about Mr. Baldwin residing there.

Yet another agent testified the agents knew Mr. Baldwin was “at the residence,”

making no reference to him residing there. In addition, the fact several other

individuals exited the home in response to the agents’ requests casts doubt on the

government’s contention it was reasonable to infer Mr. Baldwin lived at the

residence from his presence there. In light of these facts, we see no reason to

disturb the district court’s conclusion it was not reasonable for the agents to

believe Mr. Baldwin lived at the house. Thus, the district court did not err in

rejecting Mr. Baldwin’s alleged residency as evidence he had knowledge of the

firearm.



      Finally, we are not persuaded by the government’s argument Mr. Baldwin

had knowledge of the firearms because he was found in “close proximity” to


                                         -12-
them. When a felon is found in “close proximity” to a firearm there is sufficient

evidence to establish the felon knew about the weapon and constructively

possessed it. United States v. Wright, 932 F.2d at 868, 881 (10th Cir.) (upholding

a felon in possession of a firearm conviction when agents found a rifle within

eight feet of the defendant), cert. denied, 502 U.S. 962 and 502 U.S. 972 (1991).

Here, however, the record does not show agents found Mr. Baldwin in close

proximity to the weapons. Rather the testimony establishes the agents found Mr.

Baldwin in a room “in close proximity” to the room containing the safe. Our

search of the record did not reveal any evidence Mr. Baldwin ever occupied the

room containing the safe. Further, an agent testified when they found the safe, it

was “closed to the extent that you could not see what was inside of it.” This

makes it unlikely Mr. Baldwin would have known about the weapons simply from

his presence in the laundry room. Lastly, we note the district court was in a far

better position to judge Mr. Baldwin’s proximity to the firearms than we are now.

It reviewed evidence not before us, including a diagram of the house showing

where agents found both Mr. Baldwin and the firearms. Presented with this

evidence, the district court nevertheless concluded there was no evidence Mr.

Baldwin possessed the firearms. On these facts, we will not substitute our

judgment for that of the district court. See Fernandez, 18 F.3d at 876.




                                        -13-
      After carefully reviewing the record and considering the evidence in the

light most favorable to Mr. Thompson, we are not left with the “definite and firm

conviction,” Manning, 146 F.3d at 812 (citation omitted), the district court erred

in finding there was no evidence Mr. Baldwin possessed the firearms.

Consequently, the criminal nature of the firearms was not readily apparent. We

affirm the district court’s decision the plain view doctrine did not justify the

agents’ seizure of the firearms. 5



Protective Sweep

      The government next argues the agents could properly seize the firearms in

the course of a protective sweep while executing Mr. Baldwin’s arrest warrant

because the firearms posed a security risk to the agents. It argues:

      It is a logical, reasonable and even necessary extension of the
      protective sweep doctrine that where firearms are discovered in a
      residence during the execution of an arrest warrant, and while a
      simultaneous protective sweep of the house for officer safety is also
      underway, officers can lawfully seize any weapons and remove them
      from the residence for officer safety.

The government also contends “[i]f ... the officers could have properly seized the



      5
          The government also argues “the officers could immediately re-enter the
residence to seize firearms which had just been observed in plain view without obtaining
a search warrant.” We need not address this argument because, as previously discussed,
the firearms were not in plain view when the agents entered the home.


                                          -14-
weapons prior to locating [Mr.] Baldwin, or at the same time they arrested him

and brought him out of the residence[,] ... there should be no constitutional

barrier to the officers prudently performing the two operations in rapid

succession.” We reject these arguments.



      “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.”

Maryland v. Buie, 494 U.S. 325, 327 (1990). To conduct a protective sweep,

“there must be articulable facts which, 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. at 334. “The sweep lasts no longer than is 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. We note “[o]fficers

of the law are not given free reign to conduct sweep searches on the pretense that

a dangerous situation might be imminent.” United States v. Tabor, 722 F.2d 596,

598 (10th Cir. 1983).



      After considering the record in light of the applicable law, we conclude the

agents were not conducting a protective sweep when they seized the firearms.


                                         -15-
Assuming the agents could legitimately conduct a protective sweep of the house

while apprehending Mr. Baldwin, that sweep should have ended once the agents

had the opportunity to “complete the arrest and depart the premises.” Buie, 494

U.S. at 336. Yet the record reflects the agents re-entered the house to seize the

weapons after they arrested Mr. Baldwin, removed him from the home, and took

him to an adult detention center. Consequently, it is clear the agents’ seizure of

the weapons was not part of the protective sweep conducted during the execution

of Mr. Baldwin’s arrest warrant.



      The government nevertheless claims agents may continue a protective

sweep after the arrest if the agents reasonably believe the sweep will lessen the

danger. In support of this argument, the government cites two Tenth Circuit

cases: United States v. Flores, 149 F.3d 1272 (10th Cir. 1998), cert. denied, 525

U.S. 1092 (1999), and United States v. Tisdale, 921 F.2d 1095 (10th Cir. 1990),

cert. denied, 502 U.S. 986 (1991). We conclude Flores and Tisdale do not

control the outcome of the present case.



      Flores is not helpful because Mr. Flores “[did] not contest the propriety of

the protective sweep.” Flores, 149 F.3d at 1278. Consequently, the Flores court

did not decide whether the sweep was proper.


                                           -16-
       Tisdale is similarly unpersuasive. In Tisdale, officers executing an arrest

warrant conducted a protective sweep in a house after they “saw the defendant

flee out the window and heard three gunshots.” Tisdale, 921 F.2d at 1097. On

appeal, the defendant argued “no reasonable person could perceive danger after

watching him flee.” Id. The court held a protective sweep was not unreasonable

because “[g]iven defendant’s actions and background it was not unreasonable for

[the officers] to believe that other dangerous people might be present or that

defendant would return.” Id. In the case before us, the agents had no reason to

believe other dangerous people were in the house. People who exited the house

prior to Mr. Baldwin’s arrest told agents “everybody [was] out of the house but

[Mr.] Baldwin.” The special weapons and tactics team then entered the house to

arrest Mr. Baldwin. In looking for Mr. Baldwin, they conducted an exhaustive

search of the house, but did not find anyone other than Mr. Baldwin. They

arrested Mr. Baldwin and removed him from the premises. At this time, there was

no reason to believe any other dangerous people were inside the home. Hence,

Tisdale does not support the agents’ seizure of the firearms in this case. 6


       6
         The government also cites United States v. Hernandez, 941 F.2d 133 (2d Cir.
1991), and United States v. Caraza, 843 F.2d 432 (11th Cir. 1988). These cases are
inapplicable because, like Flores, they involve factual situations where the officers had
reason to believe other people in the house were a threat to officer safety. See Hernandez,
941 F.2d at 135, 137 (upholding protective sweep search under a mattress when officer
intended to place handcuffed woman on the bed); Caraza, 843 F.2d at 436 (upholding
protective sweep when officer “could not be certain whether others were in the house

                                           -17-
       In sum, we conclude any protective sweep incident to Mr. Baldwin’s arrest,

on these facts, could not extend beyond the time the agents took Mr. Baldwin to

the adult detention center. Because we conclude the agents were not justified in

conducting a protective sweep at the time they seized the firearms, we need not

reach the question of whether agents may properly seize firearms during a

protective sweep absent application of the plain view doctrine.



Conclusion

       For the foregoing reasons, we AFFIRM the district court’s suppression of

the firearms as evidence against Mr. Thompson.



                                           Entered by the Court:

                                           WADE BRORBY
                                           United States Circuit Judge




who might ... pose a threat to the officers”).


                                             -18-
