                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-4184
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                     Juan Alatorre

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                              Submitted: May 12, 2017
                                Filed: July 12, 2017
                                   ____________

Before RILEY, BEAM, and SHEPHERD, Circuit Judges.
                            ____________

SHEPHERD, Circuit Judge.

      Juan Alatorre entered a conditional guilty plea to the charge of being a felon
in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). He
appeals the district court’s1 denial of his motion to suppress evidence found in plain

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        The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
view during a warrantless search of his home. Alatorre contends that the officers’
“protective sweep” was unjustified because he had already been arrested and secured
on the front porch leaving the arresting officers without a reasonable belief that his
home harbored individuals posing a danger to them. Having jurisdiction under 28
U.S.C. § 1291, we affirm.

                                   I. Background

      Just after 6 a.m. on November 26, 2014, eight members of the Metro Area
Fugitive Task Force (“Task Force”) executed a warrant for Alatorre’s arrest at his
residence. The Task Force included Omaha police officers and United States
Marshals.

       Prior to leaving the police station that morning, the Task Force members
attended a pre-arrest briefing where they were informed that Alatorre was being
arrested because he allegedly assaulted someone with a baton outside an Omaha bar.
They were also briefed on Alatorre’s past criminal history, which included carrying
and concealing firearms. The Task Force determined that Alatorre presented
sufficient risk to their safety that use of a ballistic shield would be required during
execution of the warrant. Officers later testified that the ballistic shield is used in
high-risk operations where there is a history of gun violence, concealed weapons, or
gang activity. The ballistic shield was described as a hand-held, solid, protective
barrier measuring two-feet by four-feet and designed to stop handgun rounds.

       During the arrest warrant execution, four officers approached Alatorre’s front
door with the ballistic shield in front in a formation designed to maximize officer
safety. Other Task Force members covered the back and sides of the house. First, the
officers just knocked on the door. In response, the officers testified that they heard
and saw movements in the residence consistent with multiple people inside, but the
officers could not tell how many people were moving around behind the closed door

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and blinds. The officers also heard voices suggesting more than one person was
present to participate in a conversation or hear instructions. Someone suspiciously
came to the door and then retreated.

      Next, the officers knocked again and announced, “Police with a warrant. Come
to your door.” Alatorre did not immediately respond, so the officers knocked-and-
announced at least two more times after the delay. Alatorre finally opened the front
door, and officers quickly placed him in handcuffs and removed him to the porch.
When asked if anyone else was inside, Alatorre said, “My girlfriend.” The officers
could not see anyone from the front door. An officer shouted, “Anyone else inside,
come to the door.” The girlfriend came out of the kitchen and to the front door. She
was immediately pulled outside onto the porch with the officers. She said there was
no one else inside. The officers had experience with some arrestees lying to them in
the past about the presence of others inside a residence.

       Officers testified that the Task Force remained concerned for their safety due
to uncertainty as to the number of people inside because of the noises from inside the
house heard prior to the door opening, the movements minimally visible through the
blinds before the door opened, the quiet voices heard inside, and the hesitancy of the
occupants to open the door. Therefore, three of the officers entered the residence
behind the ballistic shield to conduct a protective sweep to locate anyone else inside
who could harm the arresting officers. The officers opened two closed doors
immediately adjacent to the front living area and checked the rooms where a person
could hide. After the living room and the two adjacent rooms were cleared, they
turned to the kitchen. Two guns were visible in plain view on a shelf near the
kitchen, along with ammunition, a line of white powder, a marijuana “joint,” a bag
of mushrooms, and other drug paraphernalia. Finding no one inside, the sweep ended
after about two minutes, and the officers left the residence.

       Based upon the officers’ observations of guns and drugs in plain view during
the protective sweep, the residence was secured, and a search warrant was obtained

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for the residence. Officer Michael Dose, who was in charge of Alatorre’s case but
was not a member of the Task Force, conducted the search. In addition to the items
seen during the protective sweep, Dose also seized a Taurus 9 millimeter handgun
from beneath a couch.

       Alatorre entered a conditional plea of guilty to the charge of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2), preserving
his right to appeal the denial of his motion to suppress. Alatorre now appeals the
denial of his motion to suppress, contending that the protective sweep was
unconstitutional and that the testimony as to the observations of the entering officers
and the items seized during execution of the subsequent search warrant should be
suppressed as tainted fruit of an unconstitutional warrantless search.

                                    II. Analysis

       “When considering a denial of a motion to suppress, we review the district
court’s factual findings for clear error and its legal conclusions de novo.” United
States v. Davis, 457 F.3d 817, 822 (8th Cir. 2006). “We review the district court’s
conclusion that a protective sweep was justified de novo.” United States v. Waldner,
425 F.3d 514, 517 (8th Cir. 2005).

      The Fourth Amendment holds inviolate “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. “[S]earches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable under
the Fourth Amendment—subject only to a few specifically established and
well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967)
(footnotes omitted).

      One such exception is the “protective sweep.” “A ‘protective sweep’ is a quick
and limited search of premises, incident to an arrest and conducted to protect the

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safety of police officers or others. It is narrowly confined to a cursory visual
inspection of those places in which a person might be hiding.” Maryland v. Buie, 494
U.S. 325, 327 (1990). “The government bears the burden of proving that [the
protective sweep] exception to the search warrant requirement applies.” United
States v. Green, 560 F.3d 853, 856 (8th Cir. 2009).

       The Fourth Amendment permits “the protective sweep . . . if the searching
officer possesse[d] 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.” Buie, 494 U.S. at 327 (alterations in original) (emphasis added)
(internal quotation marks omitted) (citing Michigan v. Long, 463 U.S. 1032, 1049-
1050 (1983)). “Buie authorizes protective sweeps for unknown individuals in a house
who may pose a threat to officers as they effectuate an arrest; Buie does not allow a
protective sweep for weapons or contraband.” Waldner, 425 F.3d at 517.

       Alatorre contends that the Task Force’s protective sweep was unreasonable
because his arrest was “accomplished quickly and without incident,” and he was
“safely secured outside on the porch and . . . could have been immediately taken off
the premises.”

    A. The Officers’ Reasonable Belief that Others Could be in the Residence

       Our sister circuits have often upheld protective sweeps after an arrest outside
of a residence. See, e.g., United States v. Cavely, 318 F.3d 987, 995-96 (10th Cir.
2003) (finding that officers executing an arrest warrant just outside the back door of
the defendant’s house were justified in making a protective sweep of his house);
United States v. Hoyos, 892 F.2d 1387, 1396-97 (9th Cir. 1989) (finding that
narcotics officers were justified in making a protective sweep of defendant’s
residence after arresting him outside) (overruled on other grounds by United States

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v. Ruiz, 257 F.3d 1030, 1032 (9th Cir. 2001) (en banc)). We have also found a
protective sweep valid even though the defendant “had already been handcuffed and
taken to [another area].” United States v. Boyd, 180 F.3d 967, 975 (8th Cir. 1999).
We have likewise found a protective sweep to be reasonable in a building that did not
immediately adjoin the place of arrest. United States v. Davis, 471 F.3d 938, 944-45
(8th Cir. 2006) (upholding protective sweep of defendant’s barn after arrest outside
of the barn). However, “[t]he inquiry as to the reasonableness and validity of a
protective sweep is necessarily fact-specific.” United States v. Thompson, 842 F.3d
1002, 1009 (7th Cir. 2016).

      Protection of officers conducting an arrest near a defendant’s home is a priority
recognized by our courts. See Buie, 494 U.S. at 333. Protective sweeps in these
circumstances are justified because officers are vulnerable during an arrest at a home,
even when the arrestee and other occupants have been secured, as explained by Buie:

             [T]here is an . . . interest of the officers in taking steps to
             assure themselves that the house in which a suspect . . . has
             just been . . . arrested is not harboring other persons who
             are dangerous and who could unexpectedly launch an
             attack. The risk of danger in the context of an arrest in the
             home is as great as, if not greater than, it is in an
             on-the-street or roadside investigatory encounter. . . . A
             protective sweep . . . occurs as an adjunct to the serious
             step of taking a person into custody for the purpose of
             prosecuting him for a crime. Moreover, unlike an
             encounter on the street or along a highway, an in-home
             arrest puts the officer at the disadvantage of being on his
             adversary’s “turf.” An ambush in a confined setting of an
             unknown configuration is more to be feared than it is in
             open, more familiar surroundings.

Id. We have summarized that “[a] protective sweep is justified by the threat of
accomplices launching a surprise attack during an arrest and is particularly important

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during an in-home arrest, due to the heightened potential for an ambush in unfamiliar
surroundings.” Davis, 471 F.3d at 944 (citing Buie, 494 U.S. at 333).

       Here, the protective sweep of the residence was justified by several articulable
facts and rational inferences supporting the officers’ reasonable beliefs that someone
else could be inside posing a danger to them during or following the arrest. Buie, 494
U.S. at 327. These facts and inferences include: (1) Alatorre’s girlfriend lingered in
the kitchen out of sight of the officers until she was specifically called to the door,
indicating that it was easy for someone to hide just out of view of the officers inside
the residence in a position from which an attack could be launched; (2) Guns or other
dangerous weapons were conceivably present in the residence given Alatorre’s
criminal history involving concealed weapons and the alleged violent baton attack
prompting the arrest, giving anyone remaining inside the residence access to weapons
to use in an ambush of the officers; (3) The audible movements and behaviors (e.g.,
coming to the door and retreating; quietly conversing) of people behind the door and
blinds after the officers knocked, along with the delays in answering the door, created
a reasonable uncertainty as to how many people were inside the residence and their
intentions toward the officers, Boyd, 180 F.3d at 975-76 (upholding a protective
sweep because “[w]hen the law enforcement officers entered the house . . . they had
no way of knowing how many people were there”) (internal quotation marks
omitted); Davis, 471 F.3d at 944 (“A protective sweep may be executed after an
arrest if there is a reasonable possibility that other persons may be present on the
premises who pose a danger to the officers.”); and (4) Officers on the front porch of
the residence dealing with Alatorre and his girlfriend were vulnerable to attack from
someone inside the residence.

       Thus, even though hindsight reveals that the officers had already encountered
the only two individuals present in Alatorre’s residence, the Task Force officers were
justified in conducting the protective sweep of Alatorre’s residence before removing
him from the porch. United States v. Williams, 577 F.3d 878, 881 (8th Cir. 2009)
(noting similarly that “[w]hile hindsight reveals that the officers had already

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encountered all of the occupants of the home before conducting the protective sweep,
that information was not apparent to the officers when they initiated the sweep”).

                        B. Scope and Duration of the Sweep

       The Task Force conducted its protective sweep in a constitutional manner
because it lasted only two minutes and was confined to places large enough to hide
a person. The Supreme Court emphasized that a protective sweep “may extend only
to a cursory inspection of those spaces where a person may be found.” Buie, 494 U.S.
at 335. We echoed Buie by specifying that a protective sweep will be upheld if it is
“quick and limited” and “initially confined to places large enough to conceal a
person.” Boyd, 180 F.3d at 976 (internal quotation marks omitted).

       Here, the Task Force’s protective sweep lasted two minutes with officers only
examining places where a person could be hiding, while incidentally noting guns and
drugs in plain view. While conducting the protective sweep, the officers remained
in formation behind the ballistic shield, confirming their continuing concern that a
person lingered and searching only those areas where a person could hide. The
officers opened two closed doors adjacent to the front living room and cleared them
of people before proceeding. This search of the adjoining rooms was lawful because
the rooms were large enough to harbor a person. Buie, 494 U.S. at 334 (“We also
hold that as an incident to the arrest the officers could, as a precautionary matter and
without probable cause or reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which an attack could be immediately
launched.”). After the living room and two adjacent rooms were cleared, the officers
swept through the kitchen looking in places where a person could hide. In
conducting the sweep of the kitchen, the officers saw two guns, drug paraphernalia,
and ammunition in plain view. The incriminating character of the drug
paraphernalia—which included a marijuana joint, a bag of mushrooms, a line of white
powder, among other drug paraphernalia—was immediately apparent, so it could be
secured without taint. Green, 560 F.3d at 856 (“During a properly limited protective

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sweep, the police may seize an item that is in plain view if its incriminating character
is immediately apparent.”) (internal quotation marks omitted). Finding no one inside,
the sweep lasted only around two minutes, which was no more than was necessary to
ensure the officers’ safety. Cf. United States v. Valencia, 499 F.3d 813, 815 (8th Cir.
2007) (mentioning without comment a “two-minute protective sweep” in a case where
officers checked an apartment and noticed guns and shell casings).

                                   III. Conclusion

       Finding no clear error in the district court’s factual findings, we find its
conclusions of law sound. The protective sweep of Alatorre’s residence passes
constitutional muster, and the fruits of that valid sweep are untainted.

      We affirm the district court’s denial of Alatorre’s motion to suppress.
                      ______________________________




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