          United States Court of Appeals
                     For the First Circuit


No. 15-2247

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      RAMÓN DELGADO-PÉREZ,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel R. Domínguez, U.S. District Judge]


                             Before

                  Torruella, Lipez, and Barron,
                         Circuit Judges.


     Edwin Edgardo León-León for appellant.
     Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief, for appellee.


                         August 16, 2017
          BARRON, Circuit Judge.            Ramón Delgado-Pérez ("Delgado")

pleaded guilty to being a prohibited person in knowing possession

of a firearm or ammunition, in violation of 18 U.S.C. § 922(g).

In doing so, however, Delgado reserved his right to challenge, on

appeal, the denial of his motion to suppress certain evidence,

including the loaded firearm mentioned in the indictment, found

when law enforcement searched his home.              He now contends that his

conviction must be overturned because the District Court erred in

denying that motion.        We agree, and so we reverse and remand.

                                       I.

          Under 18 U.S.C. § 922(g), it is a crime for certain

individuals    "to   ship    or    transport    in    interstate   or   foreign

commerce, or possess in or affecting commerce, any firearm or

ammunition; or to receive any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce." Section

922(g)(1) defines persons covered by this prohibition as those

"who ha[ve] been convicted in any court of[] a crime punishable by

imprisonment for a term exceeding one year."

          On   February      26,   2014,    Delgado    was   indicted   in   the

District of Puerto Rico for being in knowing possession of a loaded

firearm, in violation of § 922(g), by virtue of his previous

conviction for a crime punishable by imprisonment of a term

exceeding one year.     Specifically, the indictment charged Delgado

with violating § 922(g) because Delgado possessed a "Sig Sauer"


                                      -2-
pistol    loaded    with   ten   rounds      of   nine-millimeter          caliber

ammunition.

            Following the indictment, Delgado pleaded not guilty.

But, he later changed his plea to guilty.                 Prior to changing his

plea,    however,   Delgado   filed    a    motion    to      suppress    evidence

recovered "in violation of the U.S. Constitution and any fruits

recovered thereof."

            Delgado argued in his suppression motion that the search

of his residence that turned up the loaded firearm referenced in

the indictment violated the Fourth Amendment because he never

consented to a search of his residence, the evidence seized was

not in plain view, and no other exigent circumstances justified

the search of the residence.       The government, in its opposition to

Delgado's motion, contended that the motion should be denied

because   Delgado    voluntarily    consented        to    the   search    of   his

residence and because, alternatively, the officers acted in good

faith in undertaking the non-consensual warrantless search of his

home.

            A   magistrate    judge     conducted         a    hearing    on    the

suppression issue, which was held over the course of two days:

October 22, 2014, and November 10, 2014. In the Magistrate Judge's

report and recommendation following the hearing, the Magistrate

Judge described the events that transpired as follows.




                                      -3-
            On February 20, 2014, at least a dozen law enforcement

officers arrived at Delgado's residence in Puerto Rico with a New

York state warrant for his arrest for trafficking cocaine through

the   United    States     mail.     When    the   officers   arrived   outside

Delgado's      residence    and    announced    their    presence,   there   was

initially no answer.          The officers began to open a rebar gate

outside the residence, at which point Delgado opened a window and

told the officers, through the window, that he was home and was

going to open the door.            Delgado retrieved a key, came outside,

opened the rebar gate for the officers and indicated to the

officers that he was by himself.

            Once   Delgado     was   outside,      the   officers   undertook   a

protective sweep of the residence, which, according to one officer,

is their standard practice to ensure officer safety and prevent

destruction of evidence.           An officer also testified that, while

Delgado told the officers there was no one else present in the

home, the officers did not take his word and "had to verify that

there was no one else in the residence who could harm them."                 The

agents knew that Delgado was a convicted felon and drug trafficker,

and that "drug trafficking goes hand in hand with weapons."               There

were security cameras that could permit someone inside the house

to watch the movements of the officers, and the configuration of

Delgado's house included an apartment on the premises and a locked

rebar fence and gate outside of the house.


                                       -4-
             During the protective sweep, the officers noticed a

firearm magazine on top of a dresser in a room off of an interior

hallway.     Once the sweep concluded, an officer asked Delgado if

there   were   any     firearms    in     the    residence,     to    which   Delgado

responded in the affirmative and told the officer he had a firearm

and   provided    its   location     --    a     dresser    drawer.      An   officer

retrieved a loaded firearm -- the Sig Sauer referenced in the

indictment -- from inside the dresser drawer and rendered it safe.

             An officer then asked Delgado for consent to search the

residence.       Delgado consented to the search verbally, but he

declined to sign a consent form.

             The Magistrate Judge based the above-recited findings on

hearing testimony provided by two United States Postal Inspection

Service officers, which the Magistrate Judge determined to be

credible.      On the basis of "the above summarized scenario and

circumstances"       reflected     in      the     officers'         testimony,    the

Magistrate     Judge     concluded        that    the      protective     sweep    was

justified.     Thus, the Magistrate Judge found that the magazine

found on the dresser during the protective sweep need not be

suppressed.

             The Magistrate Judge also found that, based on the

magazine     recovered     during       the       protective     sweep,       it   was

"reasonabl[e]" for law enforcement to "infer[] the firearm could

be inside the residence and accessible to someone else inside the


                                          -5-
house."      The    Magistrate     Judge     thus   concluded     that    "it   was

reasonable    for   the     agents,"   after    Delgado    told    them    of   the

firearm's location, to seize it from the dresser and render it

safe.

             In addition, the Magistrate Judge found that, following

the protective sweep, Delgado consented to the search of the full

residence.    In so concluding, the Magistrate Judge determined that

the two officers' mutually consistent testimony was more credible

than Delgado's.       And the Magistrate Judge found that Delgado's

consent was not the product of coercion.

             The Magistrate Judge advised the parties that "failure

to file [objections] within the specified time waives the right to

appeal this order," based on local rules applicable in the District

of Puerto Rico.       See D.P.R. Civ. R. 72(d).             Neither party so

objected.     Several months later, the District Court adopted the

Magistrate Judge's report and recommendation and denied Delgado's

motion to suppress.

             On June 16, 2015, Delgado pleaded guilty to violating 18

U.S.C. § 922(g). At the change of plea hearing, the District Court

recognized that Delgado was, in pleading guilty, reserving the

right to appeal the denial of his motion to suppress.

             The District Court sentenced Delgado to time served,

ordered   three     years    of   supervised    release,    and    ordered      the

forfeiture of the loaded firearm described in the indictment. This


                                       -6-
appeal followed.   In addition to his counsel's brief to us, in

which Delgado challenged his conviction on the ground that he did

not consent to "the search of his residence and its premises"

following the protective sweep, Delgado also filed a pro se

supplemental brief.   In his pro se supplemental brief, Delgado

challenges the lawfulness of the protective sweep and contends

that both the magazine and the loaded firearm must be suppressed

as fruits of that unlawful sweep.1

                                II.

           Before turning to the merits of the contentions that

Delgado makes on appeal, we first consider whether Delgado waived

his right to make them on appeal.     And that consideration requires

us to address in some detail what happened at the change of plea

hearing.

                                A.

           The Magistrate Judge's report and recommendation warned

that failure by either party to file objections to the report and

recommendation "waives the right to appeal this order."          The

government thus argues that, because Delgado failed to object to

the report and recommendation, he waived his right to raise this

challenge on appeal to the District Court's order denying his




     1 When we refer to arguments that Delgado makes on appeal, we
account for the arguments contained both in his counsel's brief
and in his pro se supplemental brief.


                                -7-
motion to suppress, given that the order adopts the report and

recommendation.   And, as the government points out, Delgado makes

no argument to the contrary in his opening brief.

          Ordinarily, the government would be right that Delgado's

failure to object to the report and recommendation -- followed by

his failure to address that failure in his briefing to us -- would

preclude his appeal.    See United States v. Valencia-Copete, 792

F.2d 4, 6 (1st Cir. 1986) ("[F]ailure to file within the time

allowed waives the right to appeal the district court's order.").

But, here, we deal with an unusual circumstance that requires a

different conclusion.

          At Delgado's change-of-plea hearing, the District Court

first confirmed to Delgado's attorney that "the opinion and order

of the magistrate judge, and the report and recommendation, and

the opinion of the [District] Court" regarding "the legal issue as

to the alleged illegality of the weapon [] seized at the moment of

the arrest" would be "reserved . . . for an appeal."   The District

Court then told Delgado that Delgado was "reserv[ing] the right to

challenge the decision of the magistrate judge . . . and the

affirmance of that decision [by] the [District] Court not granting

your challenge to the suppression of the weapon that was found in

your residence at your arrest."       Later in the change-of-plea

hearing, the District Court reiterated to Delgado four more times

that Delgado had reserved the right to appeal the suppression


                                -8-
issue,    telling    him,   "[Y]ou   can    challenge     the   report     and

recommendation of the magistrate and the Court's order affirming

the report and recommendation as to the suppression of the weapon,"

"[Y]ou retain as a condition to the plea, the right to challenge

the decision of the magistrate judge and the [District] Court as

to the suppression of the weapon"; "[Y]ou retain the ability to

challenge the facts relating to the suppression of the weapon";

and "You will always be able to challenge the weapon suppression

issue."

           The District Court then told the Assistant United States

Attorney ("AUSA") that, despite Delgado pleading guilty, Delgado

was   "challenging    the   determination    of     the   [District]     Court

relating to the suppression of the weapon."          In response, the AUSA

answered "[t]hat is correct," without elaboration. And, when asked

if the government wanted the District Court to "make a further

explanation of the reservation," the AUSA declined, and did not

mention   that    Delgado   failed    to   object    to   the   report    and

recommendation.      The AUSA instead made a factual clarification,

relevant only to the merits of the suppression issue, about where

the magazine and loaded firearm were each found.

           Thus, the government never articulated to either Delgado

or to the District Court, prior to Delgado entering his plea, its

present position.     That position, stated for the first time in the

government's brief on appeal in response to Delgado's, is that


                                     -9-
Delgado waived his right to challenge the suppression ruling by

failing   to      object    to    the       report     and     recommendation,

notwithstanding    that    Delgado    plainly     pleaded      guilty   on   the

understanding,     expressly     shared     by   the   District    Court     and

seemingly accepted by the government, that Delgado could appeal

the suppression ruling.

          We have explained before, however, that, by failing to

raise an argument that a defendant's failure to take some action

below waives that defendant's right to raise an issue on appeal,

the government may waive the waiver argument.                See United States

v. Román-Huertas, 848 F.3d 72, 76-77 (1st Cir. 2017); see also

Barreto–Barreto v. United States, 551 F.3d 95, 98 (1st Cir. 2008).

And we do not see why this case is not of a similar kind, given

what Delgado and the District Court said at the change of plea

hearing and that the government said nothing to suggest otherwise

at the hearing.      In fact, at the hearing the government even

addressed the merits of the ruling it now contends was supposedly

at that point already unchallengeable.2              We thus proceed to the

merits.


     2
      The government does cite to two unpublished, out-of-circuit
cases that have held that defendants waived the right to appeal
district courts' decisions on suppression motions by not objecting
to the report and recommendation filed in their respective cases.
See United States v. Cagle, 314 F. App'x. 617 (4th Cir. 2009);
United States v. Buckbee, 3 F. App'x. 563 (7th Cir. 2001). But
Cagle simply held that a defendant waived a particular argument



                                     -10-
                                  B.

          With respect to the merits of Delgado's challenge, we

ordinarily "review[] a district court's legal conclusions involved

in denying a motion to suppress the evidence de novo and its

findings of fact for clear error."      United States v. Marshall, 348

F.3d 281, 284 (1st Cir. 2003).    "On a motion to suppress evidence

seized on the basis of a warrantless search, the presumption favors

the defendant, and it is the government's burden to demonstrate

the legitimacy of the search."   United States v. Winston, 444 F.3d

115, 123–24 (1st Cir. 2006).3



because he failed to object to a magistrate judge’s report and
recommendation, where the defendant had never been given any reason
to believe that he had, in fact, preserved the issue for appeal.
314 F. App'x. at 618. Thus, Cagle does not appear to implicate
the notice and fairness concerns that the record reveals are
implicated here. And, while Buckbee held that the defendant had
waived the right to appeal of the denial of his motion to suppress
by failing to object to the magistrate judge's report and
recommendation, the opinion provides no detail about the
particular facts and circumstances that suggest the case concerned
facts in any way analogous to our own.
     3
       As we will explain, we need not reach the factual finding
that Delgado contests on appeal, even assuming that, given the
District Court's representations about his right to contest the
factual findings in the report and recommendation on appeal, he
has not waived the right to do so by failing to raise that challenge
before the District Court. Cf. United States v. Lomeli, 676 F.3d
734, 738 (8th Cir. 2012) ("The rule in this circuit is that a
failure to object to a magistrate judge's report and recommendation
will not result in a [wholesale] waiver of the right to appeal
when the questions involved are questions of law or mixed questions
of law and fact." (alteration in original) (quotation marks and
citation omitted)); Jones v. Wood, 207 F.3d 557, 562 n.2 (9th Cir.
2000) ("Failure to object to a magistrate judge's recommendation
waives all objections to the judge's findings of fact. However,



                                 -11-
          In evaluating the lawfulness of the various searches

that took place at Delgado's residence on February 20, the fruits

of which Delgado now challenges on appeal, we begin with the

protective sweep.      The government argues on appeal, as it did

below, that the protective sweep was lawful in light of the

circumstances surrounding Delgado's arrest and thus, implicitly,

that none of the evidence recovered thereafter could be excluded

as the illegal fruit of that sweep.    We do not agree.

          The Fourth Amendment protects "[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.   The

Supreme Court has long held that "physical entry of the home is

the chief evil against which the wording of the Fourth Amendment

is directed."    Payton v. New York, 445 U.S. 573, 585 (1980)

(quotation marks and citation omitted).   "Because the prophylaxis

of the Fourth Amendment is at its zenith with respect to an

individual's home, a warrantless search of a private residence is

presumptively unreasonable unless one of a few well-delineated

exceptions applies."    United States v. Infante, 701 F.3d 386, 392

(1st Cir. 2012) (quotation marks and citation omitted); see also

Payton, 445 U.S. at 586.




in this circuit, failure to object generally does not waive
objections to purely legal conclusions." (citation omitted)).
Thus, our only issues to resolve are ones of law.


                                -12-
          One of those exceptions, and the one at issue with

respect to the initial and indisputably non-consensual search of

Delgado's residence, is the exception for protective sweeps.   The

Supreme Court set out the rules governing protective sweeps in

Maryland v. Buie, 494 U.S. 325 (1990).

          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," that "is narrowly confined to a

cursory visual inspection of those places in which a person might

be hiding."    Id. at 327.4   Many protective sweeps take place

following an arrest within a home. We have also allowed protective

sweeps, however, when an arrest "occurs just outside the home,"

because such an arrest "can pose an equally serious threat to

arresting officers as one that occurs in the home."   United States

v. Lawlor, 406 F.3d 37, 41 (1st Cir. 2005).

           Buie instructs that a protective sweep is permissible

only where there are "articulable facts which, taken together with



     4
      A protective sweep is distinct from the types of searches
that law enforcement officers may conduct incident to an arrest,
which can extend only to "the arrestee's person and the area within
his immediate control." Chimel v. California, 395 U.S. 752, 763
(1969) (quotation marks omitted); see also Buie, 494 U.S. at 336
(citing Chimel, 395 U.S. 752). Delgado was arrested on his front
porch, and the evidence that he seeks to suppress was found in an
interior room of the home, rather than on his person or in an area
within his immediate control. Thus, the parties agree that we are
dealing with a protective sweep governed by the rules set forth in
Buie.


                               -13-
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."     Buie, 494 U.S. at 334.             In applying this standard, we

evaluate protective sweeps using the same standard set out in Terry

v. Ohio, 392 U.S. 1 (1968): "would the facts available to the

officer at the moment of the . . . search warrant a man of

reasonable     caution     in   the   belief    that   the   action   taken   was

appropriate?"       Id. at 21-22 (quotation marks omitted); see also

Buie, 494 U.S. at 334; United States v. Daoust, 916 F.2d 757, 759

(1st    Cir.      1990).    "The      reasonable    suspicion    standard       is

considerably less demanding than the level of proof required to

support a finding of probable cause, but must be based on more

than an unfounded speculation." Winston, 444 F.3d at 118 (citation

omitted).

            The government relies on three of our prior cases --

Winston, Lawlor, and Martins -- in which we have upheld protective

sweeps in contending that the sweep at issue here was lawful. But,

in each of those cases, the officers undertook the sweep with

knowledge of facts -- not present here -- that provided them with

an articulable reason to suspect that some person other than the

one arrested could be present in the residence and pose a danger

to officers.




                                        -14-
           In Winston, 444 F.3d 115, for example, we upheld a

protective sweep based on several facts that gave officers reason

to believe dangerous persons might be present in the defendant's

residence.   Specifically, the officers had particularized reason

to believe that the defendant was armed and dangerous.         See id. at

118.   The defendant had also been indicted along with twenty-five

others, so officers had reason to believe that he had "numerous,

potentially armed and dangerous cohorts."     Id. at 119.      And, after

officers initially knocked on Winston's front door, Winston's

girlfriend referred them to a neighboring residence, which the

officers   visited   before   subsequently   returning    to   Winston's

residence. This deception, we found, "gave any potential occupants

inside the house five minutes to conceal themselves or prepare an

ambush."   Id.

           In United States v. Lawlor, 406 F.3d 37 (1st Cir. 2005),

we upheld a protective sweep of a residence when an officer had

received a report of a gunshot at the scene, believed that two

individuals lived in the residence and that those individuals were

engaged in drug-related activities, and had routinely observed

individuals coming and going from the residence.         See id. at 42.

In addition, upon arriving at the residence the officer saw

"drunken combatants" and "spent shotgun shells" outside.         Id.

           And, similarly, in United States v. Martins, 413 F.3d

139 (1st Cir. 2005), we upheld a protective sweep of a residence


                                 -15-
where a number of facts gave rise to a reasonable belief that an

individual posing a danger to the officers might have been inside

the residence.     Id. at 151.    A shooting had just taken place within

100 yards of the residence.            Id. at 150.     One of the shooting

victims -- whom officers had reason to believe was a gang member

-- indicated that an associate of his was in the residence.               Id.

at 150, 144.   When the officer knocked on the door of the residence

and identified himself as a police officer, he heard an adult male

voice from within the apartment, followed by movement and silence.

Id. at 147.    When the officer knocked a second time, a young child

answered the door and stated that he was home alone, suggesting

that an adult was concealing himself.         Id.

            We stated that one of these factors on its own was

"insufficient to meet the reasonable suspicion benchmark" required

to justify a protective sweep.           Id. at 150.     But, we concluded

that "[t]aking these facts in the ensemble -- the high-crime area,

the shootings, their connection with the apartment, the officer's

experience and knowledge anent gang behavior, the evasive action

of the adult known to be present behind the door, and the seeming

attempt to misinform" -- justified the protective sweep.              Id. at

151; see also, Solis-Alarcón v. United States, 662 F.3d 577, 581-

82 (1st Cir. 2011) (approving protective sweep of defendant's

residence   when   officers      had   evidence   suggesting   that   a   drug

trafficker may have also lived in the residence); Crooker v.


                                       -16-
Metallo, 5 F.3d 583, 584 (1st Cir. 1993) (explaining that officers

were   justified   in   conducting    a   protective   sweep   where   they

possessed specific facts suggesting that a particular dangerous

individual was present in the home); cf. Daoust, 916 F.2d at 759

(upholding   protective    sweep     where   the   officers    "knew   that

[defendant] had a prior criminal history of violent behavior, [and]

they knew he owned a handgun, which he kept in a rather unusual

place in the kitchen").

           Here, however, while the facts are not as egregious as

they were in United States v. Paradis, 351 F.3d 21 (1st Cir. 2003),

which involved a protective sweep when officers had unusually good

reason to know the area swept was empty, there is no evidence that

could ground the requisite reasonable suspicion comparable to that

found in the cases just described.        To the contrary, United States

Postal Inspector Eliezer Julián's testimony indicates that the

officers did "a lot of 'intel' work" before the arrest, which

involved "do[ing] surveillance" and gathering "all the information

available," to "make sure that [law enforcement officers] kn[e]w

exactly where [they were] going" and to ensure that the execution

of the arrest was "as safe as possible." Yet there is no indication

in the testimony that the pre-arrest "intel work" resulted in any

evidence that another person might be present in the home at the

time of the arrest, let alone that another dangerous person would

be.


                                   -17-
            And, unlike in Lawlor or Martins, the record contains no

evidence of violence at or near Delgado's apartment.                   In addition,

unlike in Winston or Daoust, the record contains no evidence that

officers had particularized reason to think that Delgado was armed

and dangerous, beyond the general fact that his alleged offense

involved drug trafficking.5         Similarly unlike in Winston, Lawlor,

or   Solis-Alarcón,    the    record    does    not    contain       particularized

evidence that could have led the officers to believe that multiple

persons would have been present in Delgado's residence.

            In   attempting    to    explain     why     the    information          the

government did have, prior to the sweep, justified the sweep, the

government points to the following facts found in the report and

recommendation:    the   officers      believed       there    to    be     a   general

relationship between drug trafficking and firearms, and knew that

Delgado was being arrested for a drug trafficking charge; the

officers observed that the building which contained Delgado's

residence   included     an   adjoining       apartment;       and    the       officers

observed that Delgado's residence was protected by a rebar fence


      5We note that at least one circuit has found that this factor
is not relevant to the protective sweep inquiry. See United States
v. Archibald, 589 F.3d 289, 299 (6th Cir. 2009) ("[A] defendant's
own dangerousness is not relevant in determining whether the
arresting officers reasonably believed that someone else inside
the house might pose a danger to them." (quotation marks and
citation omitted)). Because we find that the record contains no
particularized evidence of Delgado's dangerousness, we need not
reach the question of whether an arrestee's own dangerousness could
be a factor in the protective sweep analysis.


                                       -18-
and   gate        and   had       visible    security      cameras,   thus   potentially

allowing officers' movements to be tracked by someone inside the

house.       The government adds that Delgado's immediate voluntary

surrender outside the residence could have allowed the officers to

infer that "others were hiding [inside the house] waiting to . . .

launch a surprise attack on the agents."

                  We are not persuaded.            We have never held that because

the   person        arrested        is    sought    for    drug   trafficking,      it   is

reasonable to suspect for that reason alone that there may be

another person in the home who poses a danger to officer safety.

And we do not see why such a conclusion is reasonable here, when

Delgado was arrested in Puerto Rico on a New York warrant and the

government points to no evidence of a link between Delgado's

alleged drug dealing and the presence of confederates in Puerto

Rico,       let    alone      a    link     that   would    suggest   any    such   local

confederate would have been at Delgado's residence between 4:30

and 5:00 A.M.6           See Archibald, 589 F.3d at 299 (noting that the

particular arrest warrant at issue "did not raise concerns that an

accomplice might be present in [the defendant's] apartment at the

time of his arrest"); see also United States v. Moran Vargas, 376

F.3d 112, 116 (2d Cir. 2004) (rejecting the contention that "agents


        6
       The lessee of the apartment adjoining Delgado's house
testified that, on February 20, 2014, she was awoken between
4:30 a.m. and 5:00 a.m. by law enforcement's presence at the
residence.


                                               -19-
had a reasonable belief that other people might be in the motel

room due to their suspicion that [the defendant] was a drug

courier, their experience that drug couriers often meet up with

their contacts, and their awareness that drug traffickers are

frequently armed and dangerous" when "[n]o facts specific to this

case support[ed] [such] a finding").

          There were, to be sure, nearby residences, including an

adjoining apartment.       The government does not explain, however,

why that fact bears on whether anyone besides Delgado who might

pose a danger to officers was present in Delgado's home, even when

considered in connection with the reason for Delgado's arrest.

Nor is there any testimony that the "intel work" that had been

performed prior to the execution of the arrest warrant suggested

a reason to conclude that the adjoining apartment made it likely

for a dangerous confederate of Delagdo's to be present.

          As   for   the    gate   and    rebar   fence,   neither   is    a

particularly uncommon residential feature.          Nor does the record

suggest otherwise.     We thus fail to see how either feature, even

when considered along with the facts already mentioned, provides

a basis for reasonably suspecting that someone besides Delgado was

in the house who could pose a threat to the officers.                     See

Archibald, 589 F.3d at 299–300 (explaining that the government's

burden "is not reduced because the officers were unable to view

the   entire   residence     or    because   they   felt    'particularly


                                   -20-
vulnerable' based solely on their location," and that "if, as the

officers testified, entry into a 'fatal funnel' poses a greater

risk to law enforcement, the prudent course of action would have

been to back away from the door, not proceed through it").

          So too do the government's arguments fail with respect

to the presence of security cameras on the premises.               Security

cameras may better allow a person within a residence to track

officers' movements outside. But we fail to see how their presence

provides officers a reason to believe that there is in fact someone

else inside a residence.   Nor does anything in the record indicate

that there is any particular reason to believe that the presence

of such cameras does indicate that someone besides the person

arrested was likely to be in the home of the arrestee.         Thus, the

security cameras, even if considered in connection with the other

residential features of the home and Delgado's ties to drug

trafficking, fail to shed any light on the question, under Buie,

whether "a reasonably prudent officer" was warranted "in believing

that the area to be swept harbor[ed] an individual posing a danger

to those on the arrest scene."       494 U.S. at 334.

          The   final   point   we   are   asked   to   consider    is   the

government's argument that Delgado's immediate voluntary surrender

on the porch allows officers to infer the presence of others lying

in wait from inside the residence.         But Buie allows a protective

sweep based on "articulable facts which, taken together with the


                                 -21-
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 (emphasis added).

           We decline to conclude that, under Buie, it is rational,

on this record, to infer that Delgado's voluntary surrender outside

his home supports a belief that confederates were lying inside in

wait.    And that is so even if we take account of the other facts

the government identifies in assessing the significance of the

voluntary surrender.    An arrestee may surrender outside for any

number of reasons, including a desire to be cooperative, a fear

that officers will otherwise use physical force against him or his

property, or a desire to prevent the officers from entering a

residence and seeing possible contraband inside.

           To be sure, we recognize that the experience of law

enforcement officers is entitled to deference.     See Martins, 413

F.3d at 150 n.4.   But, nothing in the testimony of the two officers

articulates why it was reasonable, in this case, to infer from

Delgado's surrender on the porch that someone else must have been

lying in wait inside his home.   Neither officer indicated in their

testimony that it was either unusual or suspicious that Delgado

came downstairs and met the officer's outside the front of the

house.   To the contrary, the testimony reflects that the officers

initially sought to break through the rebar fence but then stopped


                                 -22-
and waited -- albeit while calling for him to hurry up -- once

Delgado opened a window and told the officers that he was on his

way and would open the door.

            The government relies on Winston, 444 F.3d 115, to argue

that Delgado's "voluntary surrender outside the home 'could lead

a reasonable agent to believe that it was part of a scheme to lead

the agents away from the [house] because others were hiding there

waiting to escape or launch a surprise attack on the agents.'"

(quoting Winston, 444 F.3d at 119).         But the facts of Winston do

not support the assertion.

            In that case, federal agents arrived at Winston's home

to arrest him and saw his car in the driveway.        Id. at 117.    When

the agents knocked on the door, Winston's girlfriend answered and

denied knowing to whom the car belonged.        Id.   She suggested that

the agents inquire next door.       Id.    The agents did so, but no one

answered.    Approximately five minutes later, the agents knocked

again at Winston's door.      Id.     This time, they pushed past the

girlfriend into the house.    Id.    When they shouted Winston's name,

he responded, "Up here."     Id.    The agents then found and arrested

him at the top of a staircase.       Id.

            We found that a protective sweep was reasonable.        But we

did so because "the deceptive actions of Winston's girlfriend . . .

gave any potential occupants inside the house five minutes to

conceal themselves or prepare an ambush," and because Delgado's


                                    -23-
"casual response inviting [the agents] upstairs was unusual,"

"given that Winston knew that agents had forcibly entered his

house," and thus "could lead a reasonable agent to believe that

[these actions were] part of a scheme to lead the agents away from

the basement because others were hiding there waiting to escape or

launch a surprise attack on the agents."   Id.

          The facts here are hardly comparable.   Nor, as we have

mentioned, does any testimony from officers on the scene support

the government's assertion in its brief that Delgado's voluntary

surrender outside the home was in its nature reasonably viewed as

part of a scheme to lead the agents away from the house because

others were preparing inside to launch a surprise attack on the

agents.

          In sum, there were not articulable facts -- even when

considered as a whole -- supporting the presence of another

individual in Delgado's residence.7    To be sure, the government

did not know for certain that no one else would be in Delgado's

residence who might pose a danger.    But "[l]ack of information

cannot provide an articulable basis upon which to justify a

protective sweep."   United States v. Colbert, 76 F.3d 773, 778


     7 We note also that an officer testified that a protective
sweep of a residence is standard practice when making an arrest,
at least, apparently in a case involving narcotics. That testimony
hardly suffices to show that the sweep was based on specific
articulable facts about safety concerns that existed at the time
of the sweep.


                              -24-
(6th Cir. 1996).       For while "there could always be a dangerous

person concealed within a structure[,] . . . that in itself cannot

justify a protective sweep, unless such sweeps are simply to be

permitted as a matter of course, a result hardly indicated by the

Supreme Court in Buie."      United States v. Carter, 360 F.3d 1235,

1242–43 (10th Cir. 2004).8

                                      C.

           Having found the protective sweep unlawful, we next must

address    Delgado's    contention,        raised   only   in   his   pro   se

supplemental brief, that all of the evidence that was recovered

during and following the sweep -- and thus both the magazine

recovered during the sweep itself and the loaded firearm that was

recovered in a separate search of the dresser inside his home --

must be excluded as the fruit of the unlawful sweep.                  We agree

with Delgado on this point, too.

           "[T]he indirect fruits of an illegal search or arrest

should    be   suppressed   when   they      bear   a   sufficiently     close

relationship to the underlying illegality."             New York v. Harris,


     8 A finding that the protective sweep was unlawful is also
reason to reject the government's argument that the admission of
the firearm was, if erroneous, harmless error.      The government
argues harmlessness on the ground that the magazine alone was
sufficient to convict Delgado.     But it is undisputed that the
magazine was recovered during the protective sweep, so a finding
that the protective sweep was unlawful forecloses the government's
harmlessness argument, given that the government raised no
argument as to why the magazine would not then be a fruit of the
unlawful protective sweep.


                                   -25-
495 U.S. 14, 19 (1990). Or, put otherwise, "[t]he question whether

evidence obtained after an illegal search should be suppressed"

depends on whether "the evidence to which . . . objection is made

has been come at by exploitation of that illegality or instead by

means sufficiently distinguishable to be purged of the primary

taint.'"     United States v. Finucan, 708 F.2d 838, 843 (1st Cir.

1983) (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963))

(ellipsis in original).

             In    considering   whether    the   indirect      fruits    of    an

unlawful action by law enforcement should be suppressed, courts

have considered several factors.       The Supreme Court has noted that

"[n]o single fact is dispositive," but that "temporal proximity,"

"the presence of intervening circumstances," and "the purpose and

flagrancy of the official misconduct" are all relevant to the taint

inquiry. See Brown v. Illinois, 422 U.S. 590, 603-04 (1975). And,

where, as here, an earlier unlawful search is alleged to have

tainted consent that is given later, we have "emphasized the

importance        of   determining   whether      the        prior    illegality

'significantly influenced' or 'played a significant role' in the

subsequent consent."       United States v. Cordero-Rosario, 786 F.3d

64, 76 (1st Cir. 2015).

             Applying    these   principles,      it    is    clear   that     our

conclusion that the protective sweep was unlawful requires that

the magazine found during that sweep be excluded from evidence, as


                                     -26-
it is an unlawful fruit of the protective sweep.             In fact, the

government does not even make an argument as to how the conclusion

could be otherwise.

           We also agree with Delgado that the loaded firearm, which

was found during a search of a dresser in Delgado's home that

followed the protective sweep, must be excluded.            Here, too, the

government does not make any separate argument that the search of

the dresser, which revealed the loaded firearm, was not tainted.

Instead, the government merely contends that the search of the

dresser that followed the unlawful sweep was consensual.          But that

contention is beside the point.      For while it is true that, under

our   precedent,   Delgado's    voluntary   response   to    Díaz-Vargas's

question, in which Delgado said that there was a firearm in the

dresser, would ordinarily suffice to allow officers to search the

dresser, see United States v. Reynolds, 646 F.3d 63, 73 (1st Cir.

2011) ("It was reasonable for the district court to find that [the

defendant's] gesture to the headboard when answering 'yes' to

whether   she   had   weapons    demonstrated   that   [the     defendant]

understood the police officer intended not only to learn of the

existence of the weapons, but also to find them."); see also

Winston, 444 F.3d at 121, that voluntary response followed what we

have now determined to be an unlawful protective sweep.

           The question, then, is whether that consent was tainted

by the unlawful protective sweep, such that the evidence turned up


                                   -27-
in the search is an illegal fruit.                To answer that question, we

must    "determine      whether   the   causal     link   between    [the]   prior

unlawful search and consent (voluntary though it may have been) to

[the] subsequent search is so tight that the evidence acquired

pursuant to that consent must be suppressed."                    Cordero-Rosario,

786 F.3d at 76 (citing United States vs. Navedo-Colón, 996 F.2d

1337, 1339 (1st Cir. 1993)).

             Based on the record developed at the hearing below at

which the question of the protective sweep's lawfulness was fully

addressed,      the    causal   link    between    the    protective   sweep    and

Delgado's consent to search the dresser is quite strong.                        The

record contains no indication that Díaz-Vargas or any other officer

would    have   asked    Delgado   whether     there      were   weapons   in   the

residence -- and no evidence that Delgado would have voluntarily

revealed the firearm's existence and location -- if not for the

protective sweep which occurred mere minutes before Díaz-Vargas

asked Delgado about possible weapons.                See Cordero-Rosario, 786

F.3d at 76.           And the government makes no argument as to why

Delgado's consent was not the tainted fruit of the unlawful sweep.

             The government does make two further arguments -- each,

for the first time on appeal -- as to why the loaded firearm is

admissible even if the protective sweep was unlawful.                  But, even

if we were to address those contentions despite their not having




                                        -28-
been raised below, see United States v. Elwell, 984 F.2d 1289,

1298 (1st Cir. 1993), neither has merit.

             The government first contends that we may affirm the

suppression ruling on the ground that, in light of the Magistrate

Judge's     finding    that    Delgado     later       freely    and    voluntarily

consented to a search of the full residence, the loaded firearm

would have been inevitably discovered.                The government thus argues

that Delgado's consent to the full-residence search "cured any

possible illegality in the earlier limited search of his dresser

drawer during which officers retrieved the loaded firearm."

             Under the inevitable discovery doctrine, however, "[t]he

government     bears     the   burden     of     showing,       by   reference      to

demonstrated    historical      facts    and     by    a   preponderance     of    the

evidence, that the information or item would inevitably have been

discovered by lawful means."            United States v. Infante-Ruiz, 13

F.3d 498, 503 (1st Cir. 1994) (quotation marks and citation

omitted).     And, in evaluating whether the government has met this

burden, we consider whether "the lawful means of [evidence's]

discovery     are     independent   and        would    necessarily      have     been

employed"     absent     the   earlier     unlawful        search,     and   whether

"discovery by that [lawful] means is in fact inevitable."                       United

States v. Zapata, 18 F.3d 971, 978 (1st Cir. 1994).                    We review the

District Court's factual findings as they relate to inevitable

discovery for clear error, and review legal conclusions as to the


                                        -29-
inevitable discovery issue de novo.     United States v. Almeida, 434

F.3d 25, 27 (1st Cir. 2006).9

          In   applying   the   inevitable   discovery   doctrine   to

Delgado's case, we must consider whether the government has met

its burden of showing that Delgado would inevitably have freely

consented to a search of his home -- thereby resulting in the

discovery of the magazine and the loaded firearm -- even if there

had been no unlawful protective sweep.     But this burden is not one

that the government has met.

          The Magistrate Judge did find that Delgado cooperated

with law enforcement throughout the encounter, a fact that perhaps

lends some support to the view that Delgado may have consented to

the search of the residence even if the protective sweep had not

occurred. But the Magistrate Judge did not find that Delgado would

have freely consented to a search of his residence even if the

earlier protective sweep had not occurred.    Nor did the government

below attempt to make the case that Delgado would have done so.




     9 Neither the government nor Delgado discussed inevitable
discovery in their filings below or at the suppression hearing.
While this may suggest that remand would be appropriate with
respect to the inevitable discovery issue, remand is not necessary
here. The government does not ask for a remand in the event that
we reach the inevitable discovery issue, and instead fully briefs
it. As we have already noted, the burden of showing that the
firearm would have inevitably been discovered, even without the
unlawful protective sweep, rests with the government. See Infante-
Ruiz, 13 F.3d at 503.



                                 -30-
We reject the government's contention that the record sufficiently

shows that Delgado's consent to the full-residence search was not

significantly influenced by the fact that officers had already

recovered the magazine.    After all, he had already told officers

that a firearm was in a dresser drawer in his residence, and had

done so following a protective sweep during which the magazine was

in plain view.    Nothing in the record suggests Delgado was not

aware that the magazine was in plain view during the protective

sweep or that Delgado would have admitted to having a firearm

regardless of that fact.    As the search for the firearm in the

dresser was tainted by the protective sweep in light of the

magazine's presence in plain view, we do not see how Delgado's

consent to do the full-residence search was not significantly

influenced by the fact that Delgado knew the protective sweep had

occurred.

            In other words, the government's inevitable discovery

argument rests on speculation about what Delgado would have done

had the events of that day proceeded differently.        But, the

government cites no authority to support its view that we must

credit such speculation, which we consider here even without a

finding below accepting the government's view.       Instead, the

government cites only one case in its discussion of inevitable

discovery for the proposition that the government can meet its

burden based on speculation about how a suspect or defendant would


                                -31-
have acted had an earlier unlawful search not taken place.                And

that case is an out-of-circuit district court case with facts very

different from this one.      See United States v. Wai-Keung, 845 F.

Supp. 1548, 1560-61 (S.D. Fla. 1994) (concluding that an individual

would have consented to a search of his car even absent an

allegedly   unlawful    search    the   previous    day,   given   that   the

individual in fact consented while having no knowledge of the

previous day's allegedly unlawful search).           As a result, we find

that the government has failed to carry its burden of showing that

the discovery of the loaded firearm would have been inevitable,

even absent the unlawful protective sweep.           See Infante-Ruiz, 13

F.3d at 503.

            The government's other never-before-raised argument as

to why we must affirm the suppression ruling is that exigent

circumstances justify the retrieval of the loaded firearm from the

dresser.     In   so   arguing,    however,   the   government     does   not

acknowledge that the officers' only source of knowledge about the

firearm     --    Delgado's      statement    of    its    existence      and

location -- was tainted by the unlawful protective sweep.           And, in

the only case that the government cites in support of its exigent

circumstances argument, which featured the threat of a suspect

detonating bombs located within a residence rather than a firearm

in a dresser drawer in an apparently empty home, United States v.

Lindsey, 877 F.2d 777 (9th Cir. 1989), the officers' knowledge of


                                    -32-
the   potentially   exigent     circumstance    was    not    challenged    as

potentially   tainted.     As   a   result,    we   decline   to   adopt    the

government's exigent circumstances argument.

                                    III.

           For   these   reasons,    the   District    Court's     denial    of

Delgado's motion to suppress is reversed, and the case is remanded

to the District Court.




                                    -33-
