                                                                        FILED
                                                            United States Court of Appeals
                                 PUBLISH                            Tenth Circuit

                UNITED STATES COURT OF APPEALS                     December 18, 2017

                                                                Elisabeth A. Shumaker
                       FOR THE TENTH CIRCUIT                        Clerk of Court
                       _________________________________

UNITED STATES OF AMERICA,

      Plaintiff-Appellee,

v.                                                   No. 16-3305

STEPHEN D. BAGLEY,

      Defendant-Appellant.
                    _________________________________

              Appeal from the United States District Court
                       for the District of Kansas
                   (D.C. No. 2:14-CR-20103-CM-1)
                      _________________________________

Clinton W. Lee, Lansing, Kansas, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Thomas E. Beall,
United States Attorney, with him on the briefs), District of Kansas,
Topeka, Kansas, for Plaintiff-Appellee.
                       _________________________________

Before BACHARACH, McKAY, and MURPHY, Circuit Judges.
                 _________________________________

BACHARACH, Circuit Judge.
                  _________________________________

     This appeal involves a protective sweep of a house incident to the

arrest of one of its occupants, Mr. Stephen Bagley. Our precedents limit

protective sweeps to the area immediately adjacent to the place of arrest in

the absence of specific, articulable information that a dangerous person
remains in the house. In this case, law enforcement officials conducted a

protective sweep of the entire house without any information suggesting

that someone else remained inside.

      The protective sweep yielded items that allowed law enforcement

officials to obtain a search warrant for the entire house. Executing this

warrant, officials found incriminating evidence. Mr. Bagley moved to

suppress the evidence, arguing that the protective sweep had gone too far.

The district court denied the motion. We reverse because the protective

sweep was not permissible under the Fourth Amendment.

I.    Law enforcement officials conducted a protective sweep.

      Mr. Bagley is a convicted felon who was named in an arrest warrant

for violating the terms of his supervised release. To execute this arrest

warrant, Deputy U.S. Marshals obtained a search warrant allowing entry

into a house solely to locate and arrest Mr. Bagley. Deputy marshals came

to the house to execute the warrant. When they arrived, Mr. Bagley was

allegedly in the southeast bedroom. He eventually surrendered and was

handcuffed near the front door.

      The deputy marshals then conducted a protective sweep of the entire

house. In the southeast bedroom, deputy marshals found two rounds of

ammunition and a substance appearing to be marijuana. These finds led the

deputy marshals to obtain a second search warrant. Unlike the first search

warrant, the second warrant permitted officers to search the entire house

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for firearms, ammunition, and controlled substances. Executing the second

warrant, deputy marshals found a gun. 1 Mr. Bagley unsuccessfully moved

to suppress evidence of the gun.

II.   The protective sweep went beyond constitutional limits under our
      precedents.

      To address the ruling on the motion to suppress, we start with the

first search warrant. This warrant permitted the officers to search only for

Mr. Bagley and to arrest him. Once he surrendered, the officers would

ordinarily have lacked any authority to continue searching. See Maryland

v. Buie, 494 U.S. 325, 333 (1990). But the government invokes the

exception for protective sweeps. See Fishbein v. City of Glenwood Springs,

469 F.3d 957, 961 (10th Cir. 2006) (stating that “[t]he protective-sweep

doctrine” provides “an exception to the Fourth Amendment’s warrant

requirement”).

      Invoking this exception, the government argues that when the deputy

marshals arrested Mr. Bagley, they were permitted to conduct a protective

sweep. “A protective sweep is not a full search, but rather a quick, cursory

inspection of the premises, permitted when police officers reasonably

believe, based on specific and articulable facts, that the area to be swept

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


1
    They also found a digital scale, more suspected marijuana, and more
ammunition.

                                      3
States v. Soria, 959 F.2d 855, 857 (10th Cir. 1992). Even if a protective

sweep were permissible, however, the deputy marshals went beyond the

limits imposed by our precedents.

      A.     Maryland v. Buie identifies two situations for a protective
             sweep.

      The seminal precedent is Maryland v. Buie, 494 U.S. 325 (1990).

There the Supreme Court allowed protective sweeps in two situations. In

the first situation, authorities can look in “closets and other spaces

immediately adjoining the place of arrest from which an attack could be

immediately launched.” 494 U.S. at 334. In the second situation,

authorities can look elsewhere in the house upon specific, articulable facts

supporting a reasonable belief that someone dangerous remains in the

house. Id.

      B.     Our review is de novo.

      In determining whether a protective sweep complies with the Fourth

Amendment, we engage in de novo review. United States v. Smith, 131

F.3d 1392, 1396 (10th Cir. 1997).

      C.     The protective sweep went beyond either situation identified
             in Buie.

      The district court held that the protective sweep fit the second

situation. The government defends this holding but argues that the

protective sweep also fit the first situation. The district court and the

government are incorrect.

                                       4
      1.    The record does not support affirmance based on Buie’s
            first situation.

      The government argues for the first time that the protective sweep

fell within the first situation discussed in Buie. Buie’s first situation

allowed the deputy marshals to look in “closets and other spaces

immediately adjoining the place of arrest from which an attack could be

immediately launched.” Maryland v. Buie, 494 U.S. 325, 334 (1990).

Though the government did not raise this argument in district court, we can

affirm on alternative grounds when the district court record is adequately

developed. United States v. Nelson, 868 F.3d 885, 891 (10th Cir. 2017).

      The record provides some relevant information but leaves sizeable

gaps pertinent to Buie’s first situation. We know that the ammunition and

suspected marijuana were found in the southeast bedroom and that Mr.

Bagley was near the front door when he was handcuffed. And by the time

the deputy marshals started the protective sweep, Mr. Bagley had already

been handcuffed. Appellant’s App’x at 80. But we cannot discern from the

record whether Mr. Bagley was inside or outside the house when the

protective sweep began. If he was outside the house, Buie’s first situation

would probably not allow a protective sweep in the southeast bedroom. See

United States v. White, 748 F.3d 507, 510 (3d Cir. 2014) (stating that a

protective sweep cannot be justified under Buie’s first situation when the

arrest occurs outside the house).


                                       5
     But Mr. Bagley may have been in the living room when the protective

sweep began. If he was, there would have been a wall and hallway between

Mr. Bagley and the southeast bedroom. See United States v. Archibald, 589

F.3d 289, 293, 298 (6th Cir. 2009) (holding that for purposes of a

protective sweep, the kitchen did not adjoin the living room when the two

were separated by a solid bar counter obscuring the view between the two

rooms). From the record, we cannot discern the length of the hallway or

the distance between Mr. Bagley and the southeast bedroom. Thus, we lack

enough information in the record to characterize the southeast bedroom and

Mr. Bagley’s location as “adjacent.” See United States v. Burrows, 48 F.3d

1011, 1016 (7th Cir. 1995) (noting that the Buie inquiry is “very fact-

specific” and that one of the guiding considerations is the house’s

“particular configuration”).

     In light of the deficiencies in the district court record, we cannot

affirm the district court’s ruling based on the government’s newly asserted

reliance on Buie’s first situation. See United States v. Nelson, 868 F.3d

885, 891 (10th Cir. 2017) (declining to affirm the suppression of evidence,

based on Buie’s first situation, because the district court had “made no

findings regarding the proximity of the location of [the defendant’s] arrest

to the area that [the law enforcement officer] ultimately searched”).

     The government argues that it doesn’t matter where Mr. Bagley was

at the time of the protective sweep because he had earlier been “arrested”

                                      6
in the southeast bedroom. With this focus on the place of the purported

earlier arrest, the government argues that the deputy marshals could enter

the southeast bedroom because Mr. Bagley had announced his surrender

when he was in the southeast bedroom, rendering him under “arrest” at that

time. Based on the alleged location of the arrest as the southeast bedroom,

the government argues that the deputy marshals could later enter that room

to conduct a protective sweep based on Buie’s first situation. We disagree.

      The meaning of “arrest” can vary based on context. For example,

when applying the Fourth Amendment to an arrest in a public area, we

consider an “arrest” to take place when the individual submits to authority.

See California v. Hodari D., 499 U.S. 621, 626-27 (1991). But in applying

the Speedy Trial Act, some courts consider an “arrest” to take place when

the individual has been formally charged with a crime. E.g., United States

v. Sayers, 698 F.2d 1128, 1131 (11th Cir. 1983). What about the context of

Buie’s first situation, when pinpointing the timing of the arrest bears only

on whether the searched area adjoins the place of the arrest?

      In this context, we consider the purpose of the protective sweep.

Under Buie, the officers can conduct a cursory inspection of the area

adjoining the place of arrest to prevent a danger to those at the scene. See

United States v. Maddox, 388 F.3d 1356, 1363 (10th Cir. 2004) (“[W]e

conclude that it is proper to consider the reasonable threats posed to the

officers when drawing the boundaries of the arrest scene in an individual

                                      7
case.”). Here, a prudent officer would have been conducting the protective

sweep when Mr. Bagley was already handcuffed.

      Rather than allege a potential danger, the government defends

inspection of the southeast bedroom on the ground that the arrest had taken

place there. For this argument, the government reasons that Mr. Bagley

submitted to authorities when he announced from the southeast bedroom

that he would surrender. But at that point, Mr. Bagley was unrestrained,

free to renege on his promise to surrender. That freedom ended only when

he was handcuffed near the front door. Therefore, in the context of Buie’s

first situation, the place of arrest was near the front door rather than in the

southeast bedroom.

      But let’s assume for the sake of argument that Mr. Bagley was

technically under arrest while still in the southeast bedroom (when he told

the officers that he would come out and surrender). According to the

government, the protective sweep could encompass the southeast bedroom

because Mr. Bagley had been arrested there. But he was not handcuffed

until after he had left the bedroom.

      The deputy marshals could conduct a protective sweep only if the

protective sweep was justified at the time of the arrest; the deputy

marshals could not conduct the arrest and later conduct a protective sweep

based on an earlier arrest somewhere in the house. See Vale v. Louisiana,

399 U.S. 30, 33 (1970) (“A search may be incident to an arrest ‘only if it is

                                       8
substantially contemporaneous with the arrest and is confined to the

immediate vicinity of the arrest.’” (quoting Shipley v. California, 395 U.S.

818, 819 (1969))). In these circumstances, we conclude that the protective

sweep did not fall within the first situation identified in Buie.

      2.    The protective sweep did not fit Buie’s second situation.

      The district court concluded that the protective sweep fit Buie’s

second situation. We disagree.

      In the second situation for a protective sweep, officers can search

beyond adjacent areas upon “‘specific and articulable facts’” supporting an

objective belief that someone dangerous remains in the house. Maryland v.

Buie, 494 U.S. 325, 332-34 (1990) (quoting Terry v. Ohio, 392 U.S. 1, 21

(1968)). The government concedes that its reliance on Buie’s second

situation is no longer tenable under United States v. Nelson, 868 F.3d 885

(10th Cir. 2017). We agree.

      When the deputy marshals entered the southeast bedroom, Mr.

Bagley, his girlfriend, and her children had already left the house. The

deputy marshals had no way of knowing, one way or another, whether

anyone besides Mr. Bagley was still in the house. This uncertainty,

according to the government, would have concerned the officers because

they might have been subjected to an attack if someone else had remained

inside.



                                       9
       We recently rejected an identical argument in Nelson. There too the

government relied on the officers’ inability to know whether someone else

was inside. 868 F.3d at 889. But we held that lack of knowledge cannot

constitute the specific, articulable facts required by Buie. Id. For this

holding, we reasoned that if officers lack any information about whether

someone remains inside a house, they do not have the specific, articulable

facts required for a protective sweep beyond the adjacent areas. Id.; see

also United States v. Carter, 360 F.3d 1235, 1242-43 (10th Cir. 2004)

(stating that a protective sweep cannot be based on the possibility that a

dangerous person could be concealed without specific, articulable facts

that someone was concealed). This lack of specific, articulable facts

required invalidation of the search in Nelson, and the same is true here.

III.   The improper protective sweep indirectly led to discovery of the
       gun, requiring suppression.

       The protective sweep provided only an indirect connection to

evidence of the gun. When the officers conducted the protective sweep,

they found only ammunition and a substance appearing to be marijuana.

Relying solely on the discovery of these items, one of the deputy marshals

(Deputy Matt Cahill) obtained a search warrant. Executing that warrant,

the deputy marshals found the gun.

       Ordinarily, the Fourth Amendment would require the district court to

exclude the gun from evidence because its discovery resulted indirectly


                                      10
from the improper protective sweep. See Wong Sun v. United States, 371

U.S. 471, 484-85 (1963). But an exception exists, which we call the “good-

faith exception.” See United States v. Leon, 468 U.S. 897, 922-23 (1984).

Under this exception, evidence is not suppressed when officers act in good

faith, reasonably relying on a mistake by a third party, usually a neutral,

detached judge who issues a warrant. Id. But the good-faith exception does

not apply when officers rely on their own prior conduct. See United States

v. Herrera, 444 F.3d 1238, 1249 (10th Cir. 2006) (stating that the good-

faith exception ordinarily applies only when an officer reasonably relies on

a mistake made by someone else).

      The district court did not address the applicability of this exception;

as a result, we address the exception in the first instance. Doing so, we

conclude that the exception does not apply because the second search

warrant was based solely on what the deputy marshals had found in the

improper protective sweep. Presumably for this reason, the government

does not suggest that the deputy marshals relied on a judge’s mistake. See

United States v. Nelson, 868 F.3d 885, 892 (10th Cir. 2017) (holding that

the good-faith exception did not apply because the officers were relying

only on what they had found in their own improper protective sweep).

      Deputy Cahill obtained the second search warrant by telling the

judge that the deputy marshals had found ammunition and suspected

marijuana in a protective sweep. Nothing was said about where Mr. Bagley

                                      11
was at the time of arrest or where the ammunition and suspected marijuana

had been found. As a result, the deputy marshals admittedly did not rely on

the imprimatur of the warrant. They relied on information known only to

themselves about the scope of the protective sweep and the underlying

factual circumstances. The deputy marshals’ reliance on their own conduct

prevents us from applying the good-faith exception. See United States v.

Herrera, 444 F.3d 1238, 1249-52 (10th Cir. 2006) (stating that the good-

faith exception applies only “where someone other than a police officer has

made the mistaken determination that resulted in the Fourth Amendment

violation”).

      Finally, the government argues that the good-faith exception applies

when the officers’ conduct is “close” to the line of validity. We rejected an

identical argument in United States v. Nelson, 868 F.3d 885, 892 (10th Cir.

2017). There the lack of reliance on a third party prevented application of

the good-faith exception even if the officers’ conduct had been “close” to

the line of validity. 868 F.3d at 892.

      The same is true here: The good-faith exception requires reliance on

a third party’s mistake; in the absence of such reliance, the district court

must suppress the unlawfully obtained evidence when its introduction

would be unconstitutional even if the issue is “close.”




                                         12
IV.   Conclusion

      The district court erred in denying Mr. Bagley’s motion to suppress

because the deputy marshals exceeded Buie’s two situations for a

protective sweep. Because the protective sweep was improper, the deputy

marshals could not use the ammunition or suspected marijuana to justify

the second search warrant. Executing the second search warrant, the deputy

marshals found a gun, which should have been suppressed in district court.

Thus, we reverse and remand with instructions to grant Mr. Bagley’s

motion to suppress evidence of the gun.




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