                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JUN 29 2004
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellant,
                                                        No. 03-2251
 v.                                              (District of New Mexico)
                                                (D.C. No. CR-03-368-MV)
 STEVEN EDWARD ROOF,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before SEYMOUR, HOLLOWAY, and MURPHY, Circuit Judges.


I.    INTRODUCTION

      Defendant-appellee Steven Edward Roof was arrested on February 7, 2003

on an outstanding warrant for a probation violation on a low-level white collar

offense. During a purported protective sweep of Roof’s home, the police saw

evidence that Roof was manufacturing methamphetamine. Based in part on


      *
       This order and judgment is not binding precedent, except under the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.
information discovered during the protective sweep, Drug Enforcement Agency

(“DEA”) officers obtained a search warrant which led to the seizure of drugs,

documents, money, lab equipment, and guns from Roof’s home.

      On May 14, 2003, a grand jury returned an indictment against Roof,

charging him with: (1) possessing, with intent to distribute, 50 grams or more of

methamphetamine within 1000 feet of a school in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(A) and 860(a); (2) maintaining a place for the manufacture,

distribution, and use of controlled substances in violation of 21 U.S.C. §§

856(a)(1) and (b); (3) possessing a firearm in furtherance of a drug trafficking

crime in violation of 18 U.S.C. § 924(c)(1)(A); and (4) being a felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Roof moved to suppress evidence seized during the search of his home and

detached garage. Roof argued that the protective sweep was not supported by

specific and articulable facts indicating that his home and the detached garage

harbored an individual posing a danger to the arresting officers. The district

court granted the motion.

      The government appeals. Exercising jurisdiction pursuant to 18 U.S.C. §

3731, this court AFFIRMS the district court’s grant of Roof’s motion to

suppress.




                                         -2-
II.     BACKGROUND

        On August 7, 2002, United States Marshals’ Service Deputies received

information from DEA Task Force Officer Frank Chavez that federal fugitive

Steven Roof was residing at a house at 5512 Delhi NE in Albuquerque, New

Mexico. Chavez obtained this information from an unidentified, confidential

informant (“CI”). The CI told Chavez that Roof was always heavily armed, was

cooking methamphetamine at the house, was teaching others how to make

methamphetamine, and was using an alias of “Tim Howard.” The government

presented no evidence that the informant had any record of reliability.

        The informant’s tip was not corroborated over the next six months, despite

consistent periodic surveillance. No one matching Roof’s description was ever

seen at the house. License plate checks conducted on vehicles parked outside the

house over these six months never showed Roof’s name or alleged aliases. The

house’s utilities were registered to one Lance Beaton. Investigations revealed

that Beaton was a real person with no criminal history. 1 Roof’s name was not on

any of the records associated with the house. Throughout those six months, the

surveilling deputies never saw any kind of suspicious activity, nor Roof, in the

home.




        1
            At the suppression hearing, Roof explained that Beaton was his landlord.

                                            -3-
      On February 7, 2003, deputies John Olsen and Rex Griffith were

conducting surveillance of the house. At around 9:00 p.m., the deputies saw Roof

step out of the house and drive away in a Porsche. Although the deputies

followed Roof to a retail store, they did not follow him all the way back to the

house for fear of being exposed. Back at the house, the deputies could not tell if

Roof had returned because the garage door was closed and no one could be

observed from outside. Deputies Thomas Bauman, Kent Halverson, Lee Boman

and Corey Thomas were called to the scene by Griffith as back-ups.

      A pick-up truck pulled into the driveway at around 11:30 p.m. Deputy

Griffith was unable to see the occupant(s) of the vehicle or whether anyone got

out of the truck and entered the house. The district court found that neither

Griffith nor any other deputy could tell how many people were in the truck or

whether anyone from the truck went into the house. The deputies called the

house’s listed phone number, but no one answered.

      Sounds were emanating from a television, which also caused lights to

flicker inside the house. The 36-inch television set was near the front entryway

with its side panel immediately visible by anyone standing in the open doorway.

      Deputy Bauman decided to enter the home and arrest Roof. Deputies

Halverson and Olsen covered the back of the house. Deputies Boman and Griffith

approached the front door. Deputies Bauman and Thomas, as well as two


                                         -4-
Albuquerque police officers, approached the front of the home from the garage

side. Altogether, the deputies and Albuquerque police officers surrounded the

home with “enough personnel” to establish “a secure perimeter around all the

entry or exit points of the house.” Deputy Thomas testified that, while sitting

outside the garage door, which was three to four feet from the front door of the

house, he detected an odor which he associated, based upon his narcotics training,

with methamphetamine. The district court found, however, that the deputies

could not smell the methamphetamine from outside the house.

      Bauman knocked on the front door and announced that they were police

officers with a warrant. The deputies heard some movement or shuffling inside

the house. Halverson saw Roof open the rear sliding glass door and ordered Roof

to get down. Roof retreated back into the home. Deputies Thomas and Bauman,

who were still at the front door, heard Halverson “yell[] that [Roof] was running

out the back door” and tell Roof to “get on the ground.” Within a minute or so,

the front door opened and Roof and one John Essres exited the house. Both men

had their hands outstretched, complied with orders to lie on the ground, and were

handcuffed without incident. After he exited the house, Essres told the deputies

that the pickup truck in the driveway “was his vehicle, and that he [was] the one

[who] went in the house.”




                                         -5-
      Deputy Bauman acknowledged that, once Roof and Essres exited, the

deputies “did not know whether anybody else was in [the house] or not.” Neither

the deputies nor the police officers had any information that anyone else was in

the home. Thomas testified that the only information the deputies had about

anybody being in the house was that “earlier, while doing surveillance in the

back, the deputies had seen movement and shadows in the house.” Bauman,

however, testified that once Roof and Essres exited the house, he “didn’t see . . .

any other shadows moving around inside or anything.”

      At the time of Roof’s and Essres’ arrest, Bauman was “directly in the full

visual of the doorway.” The door had remained wide open after Roof and Essres

exited the house. From his vantage point, Bauman could have seen if anyone

remained inside the lighted house. Bauman nevertheless claimed that he could

not discern the source of “noises” that were still emanating from the house. The

district court, however, found that an officer with Bauman’s vantage point should

have been able to tell that the noises and lights inside the house were from the

television.

      Bauman testified that he decided to enter the house to conduct a “protective

sweep” because he was concerned that people remained in the home who could

have been armed and threatened the deputies’ safety. Bauman entered through the

front door, followed by Thomas and the two police officers. Inside the living

room, the deputies saw, in plain view, “a clump of white chalky substance” which
                                         -6-
appeared to be narcotics, a substantial amount of cash, and a firearm. In a

computer room they saw a second firearm. After sweeping the house and finding

no one, the officers exited.

       Bauman next opened the door of the detached garage, the entrance to which

was directly opposite the front entrance of the house, and entered it. Bauman

admitted that “[w]e don’t know if anybody is in [the garage] or who could be in

there.” The district court found that Bauman decided to enter the garage merely

“because it was an unknown,” and had no actual reason to suspect that someone

was in the garage or that the garage housed a source of danger to the deputies.

After Bauman opened the garage door, both Bauman and Thomas detected a

strong chemical odor coming from the garage. Thomas associated the odor with

methamphetamine. Bauman conducted a quick sweep of the garage and found no

one.

       After the officers had already entered the house to conduct the sweep, the

Albuquerque police officers searched Roof and Essres. They found

approximately $1200 on Roof’s person. Roof heard the officers comment that

they had found a suspected methamphetamine lab in the house. After the sweep

had been conducted, Roof stated that he had cooked methamphetamine in the

residence approximately three times within the last month.

       The deputies then called DEA officials who obtained a warrant to search

the home. The warrant was based in part on the deputies’ observations during the
                                         -7-
protective sweep and on Roof’s statement that he had cooked methamphetamine

in the residence within the last month. The search pursuant to this warrant

produced numerous items, including material used to manufacture

methamphetamine.

III.   DISCUSSION

       This court reviews a district court’s factual findings for clear error. United

States v. Mains, 33 F.3d 1222, 1227 (10th Cir. 1994). A factual finding is clearly

erroneous if it is without support in the record or if, after reviewing all the

evidence, this court is left with the definite and firm conviction that a mistake has

been made. United States v. Beaulieu, 893 F.2d 1177, 1182 (10th Cir. 1990).

"[T]he credibility of the witnesses and the weight given to the evidence, as well

as the inferences and conclusions drawn therefrom, are matters for the trial

judge.” United States v. Carter, 360 F.3d 1235, 1238 (10th Cir. 2004) (quotation

omitted). Ultimate determinations of reasonableness under the Fourth

Amendment are reviewed de novo, viewing the evidence in the light most

favorable to the prevailing party. United States v. De la Cruz-Tapia, 162 F.3d

1275, 1277 (10th Cir. 1998); Mains, 33 F.3d at 1227.

       Arguments not raised before the district court, on the other hand, are

reviewed for plain error. United States v. Walser, 275 F.3d 981, 985 (10th Cir.

2001). This court may exercise its discretion to notice the forfeited error if it is



                                          -8-
plain and “seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993).

      1. Protective Sweep

      The Fourth Amendment ordinarily requires that officers obtain a warrant

before searching a defendant’s home or its curtilage. See Oliver v. United States,

466 U.S. 170, 180 (1984); United States v. Cavely, 318 F.3d 987, 993 (10th Cir.

2003). An exception to this requirement is the protective sweep, which 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). The protective sweep must be justified by a reasonable perception,

based upon specific and articulable facts, that the area swept harbors an

individual posing an immediate danger to the officers or others. Id. at 334;

United States v. Hogan, 38 F.3d 1148, 1150 (10th Cir. 1994).

      The government argues that the district court erroneously granted Roof’s

motion to suppress. The government claims that the deputies had a reasonable

articulable suspicion that after Roof’s arrest, persons who could have posed a

danger to them remained in the house and garage. This court disagrees.

      The deputies did not have specific and articulable facts supporting a

reasonable perception that Roof’s house harbored an individual posing an

immediate danger to them. The government’s argument heavily relies on the CI’s

tip that Roof was cooking methamphetamine in the home, was heavily armed, and
                                          -9-
was possibly showing others how to make methamphetamine. This tip, however,

was not only six months old, but also completely uncorroborated. 2 Furthermore,

both Roof and Essres were completely compliant when, prior to the sweep, they

were arrested and handcuffed outside the home. Their compliance made the six-

month old tip that Roof was always “heavily armed” even less likely to support a

reasonable perception of danger. See Carter, 360 F.3d at 1242 (holding that there

was no reasonable risk of danger to the police officers when they arrested a

combative defendant outside his home and had no specific reason to believe that

someone had stayed behind).

      Moreover, the deputies’ uncertainties as to whether anyone remained in the

home did not justify the sweep. A mere absence of information about whether

anyone remains in a home does not justify a protective sweep. Sharrar v. Felsing,

128 F.3d 810, 825 (3d Cir. 1997); United States v. Tabor, 722 F.2d 596, 598 (10th

Cir. 1983) (reasoning that officers are not given free reign to conduct sweep

searches on the pretense that a dangerous situation might be imminent). The

deputies in this case testified that they did not know whether anyone from the

pick-up truck had entered the home. Such lack of information does not constitute


      2
        The government argues that Thomas’ testimony that he smelled
methamphetamine while sitting outside the garage corroborated the CI’s tip. The
district court, however, implicitly discredited Thomas’ testimony when it found
that the deputies could not smell the methamphetamine from outside the house.
This finding is not clearly erroneous. Thus, the government’s argument that the
CI’s tip was corroborated is unavailing.
                                       -10-
specific, articulable facts. Felsing, 128 F.3d at 825. In addition, from Bauman’s

vantage point in the doorway, a reasonable officer should have clearly seen that

the noises and flickering lights in the home were emanating from a television. As

Bauman himself admitted, once Roof and Essres exited the home, the officers no

longer saw shadows moving within it. Under such circumstances, the deputies

had no specific, articulable facts which would justify a reasonable perception that

the home harbored a person posing an immediate danger to them.

      Likewise, the deputies did not have a reasonable perception, based on

specific and articulable facts, that the garage harbored an individual posing an

immediate danger to them. There were no “flickering lights” or “sounds”

emanating from the garage. Unlike the open door of the house, the garage door

was closed, making it even less likely that a dangerous person would

“unexpectedly launch an attack” on the deputies from within. See Buie, 494 U.S.

at 333. Further, the district court specifically found that Bauman decided to enter

the garage merely “because it was an unknown.” Nothing in the record indicates

that this finding is clearly erroneous. For all these reasons, the protective sweeps

of the home and the garage were unjustified and violated Roof’s Fourth

Amendment rights.

      2. Exigent Circumstances

      The government argues, for the first time on appeal, that the exigent

circumstances exception to the warrant requirement applies to this case. The
                                         -11-
government argues that the deputies had a reasonable belief, based on specific

and articulable facts, that there was evidence of a methamphetamine lab in the

house which could be destroyed by people inside it.

       Roof correctly notes that the government waived this argument by failing to

raise it at the district court. When the government fails to raise an issue below,

this court deems it waived on appeal. See United States v. Swepston, 987 F.2d

1510, 1516 (10th Cir. 1993). Therefore, this court reviews this argument only for

plain error. 3

       The district court did not commit plain error in failing to sua sponte

analyze whether exigent circumstances justified the sweep of Roof’s home and

garage. Before an appellate court can correct an error not raised in the district



       Roof argues that this argument involves a fact-intensive inquiry which
       3

should not be reviewed even for plain error. Plain error review is not appropriate
when the alleged error involves resolution of factual disputes. See United States
v. Easter, 981 F.2d 1549, 1556 (10th Cir. 1992). Indeed, the government’s
exigent circumstances argument involves the fact-intensive inquiry of whether the
deputies reasonably believed that there was a methamphetamine laboratory inside
the home and garage, and that persons remained inside the home and garage who
could have destroyed this evidence. Within the context of its protective sweep
analysis, however, the district court made the factual findings that are needed for
the exigent circumstances analysis. The district court found that: (1) the deputies
could not smell methamphetamine from outside the home; (2) the deputies had an
uncorroborated, six-month old tip from a CI of unknown reliability that Roof was
“cooking” methamphetamine in the house; (3) A reasonable officer in Bauman’s
position would have known that the noises and flickering lights inside the home
were emanating from the television; and (4) Bauman entered the garage on the
sole basis that it was an “unknown.” Because the court made the pertinent factual
findings, this court can properly review the exigent circumstances argument for
plain error.
                                         -12-
court, there must be: (1) an error; (2) that is plain; and (3) that affects substantial

rights. United States v. Cotton, 535 U.S. 625, 631 (2002). If all three conditions

are met, an appellate court may then exercise its discretion to notice a forfeited

error, but only if (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id.

      There was no error in this case because there were no exigent

circumstances which justified the search of Roof’s home and garage. Exigent

circumstances justify a warrantless search if: (1) the deputies had reasonable

grounds to believe that there is an immediate need to protect their lives or

property, or the lives or property of others; (2) the search is not motivated by an

intent to arrest and seize evidence; and (3) there is some reasonable basis,

approaching probable cause, to associate an emergency with the area or place to

be searched. United States v. Rhiger, 315 F.3d 1283, 1288 (10th Cir. 2003).

Threats to public safety, such as explosive and toxic methamphetamine labs, can

constitute an exigent circumstance which justifies a warrantless search. Id. at

1288, 1290-91.

      The deputies had no reasonable basis, much less a basis approaching

probable cause, to believe that Roof’s home and garage contained a

methamphetamine lab which posed an immediate danger to public safety or which

could have been destroyed by persons within it. The government correctly argues

that the detection of the odor of methamphetamine by a law enforcement officer,
                                           -13-
when coupled with other relevant facts, can support an exigency argument.

Rhiger, 315 F.3d at 1291 n.4. As noted previously, however, the district court

specifically found that the deputies could not smell methamphetamine from

outside. The only information the deputies had which associated

methamphetamine with the house was a six-month old, uncorroborated tip from a

CI whose reliability was unproven. Under these circumstances, the officers did

not have a reasonable basis to believe that Roof’s home and garage contained a

methamphetamine lab.

      For the previously stated reasons, the deputies did not have a reasonable

basis to think that anyone remained inside the home or the garage. Thus, they did

not have a reasonable basis to fear the destruction of evidence of criminal

activity. Therefore, the district court committed no error, much less plain error,

in failing to sua sponte raise an unmeritorious, exigent circumstances argument

on the government’s behalf.

      3. Inevitable Discovery

      Finally, the government argues that the district court committed plain error 4

in suppressing the evidence because it would have been inevitably discovered

through lawful means. The government contends that, even without the

information discovered during the warrantless sweep, the affidavit contained



      This argument was not presented to the district court. The government
      4

concedes that it is reviewed for plain error.
                                         -14-
sufficient probable cause to support the search warrant. It in turn argues that the

search warrant would have led to the inevitable discovery of the evidence

suppressed.

      The district court did not err, much less commit plain error, in failing to

sua sponte consider whether the evidence in this case would have been inevitably

discovered. While it is true that evidence can be properly admitted if an

independent investigation would have inevitably led to the discovery of that

evidence, United States v. Souza, 223 F.3d 1197, 1202-03 (10th Cir. 2000), the

evidence in this case would not have been so discovered. The government’s

inevitable discovery theory requires that the affidavit, stripped of the evidence

obtained during the unconstitutional sweep, establish sufficient probable cause to

support the search warrant. See United States v. Snow, 919 F.2d 1458, 1460 (10th

Cir. 1990).

      The affidavit in this case, when purged of its tainted testimony, does not

establish probable cause for a search warrant. An affidavit establishes probable

cause for a search warrant if the totality of the information contained therein

establishes “the probability that evidence of criminal activity would be located in

the desired search area.” United States v. Wittgenstein, 163 F.3d 1164, 1171

(10th Cir. 1998). When purged of the illegally obtained information, the affidavit

in this case only establishes that: (1) in August 2002, a CI told the DEA that Roof

lived at 5512 Delhi NE, was known to carry firearms, and was making
                                         -15-
methamphetamine in the house; (2) on February 7, 2003, Roof was seen leaving

the home, driving to Lowe’s hardware store, and returning to the home when he

saw that Lowe’s was closed; (3) that same night, a brown pickup truck pulled into

Roof’s driveway and at least one male subject entered the residence; and (4)

shortly thereafter, deputies arrested Roof outside the home on a probation

violation warrant, and a male subject, Essres, also surrendered himself to the

deputies. 5

       The CI’s six-month old tip does not, in conjunction with the other evidence

in the affidavit, establish probable cause for the search warrant. An informant’s

tip can establish probable cause if, in the totality of circumstances, there is some

indication of its reliability. See Illinois v. Gates, 462 U.S. 213, 230-32 (1983).

Relevant considerations in determining the overall reliability of the informant’s

tip include: (1) independent corroboration of the tip; (2) whether the CI is known

to have provided reliable information in the past; and (3) whether the CI has

stated the basis for the tip. See id. at 232 n.7, 233-34, 238-39; United States v.


       5
        The government urges this court to consider, in its inevitable discovery
analysis, that “Deputy Thomas smelled methamphetamine coming from the house”
while sitting outside the garage. This is unavailing for two reasons. First, the
district court specifically found that the deputies could not smell
methamphetamine from outside the house. This finding, which involves an
implicit credibility determination, is not clearly erroneous. See Carter, 360 F.3d
at 1238. Second, the affidavit contained no statement that Thomas smelled
methamphetamine while sitting outside the house. This court declines the
invitation to rewrite the affidavit on appeal in order to consider whether it
establishes probable cause.
                                         -16-
Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000). The affidavit in this case does

not state that the CI had ever before provided reliable information to law

enforcement officers. Except for Roof’s mere presence at the house on February

7, 2003, the affidavit neither states the CI’s basis for his tip nor mentions any

facts that corroborate the CI’s tip. Under such circumstances, the CI’s tip is not

sufficiently reliable to establish probable cause.

      In an attempt to salvage its argument of plain error, the government urges

this court to consider the statement made by Roof, which was included in the

affidavit, that he had cooked methamphetamine in the house three times within

the past month. Roof urges this court not to consider his statement, arguing that

it is the fruit of the Fourth Amendment violation because he made it after he had

seen the deputies enter his home.

      This court declines to consider Roof’s statement in its analysis of whether

the affidavit establishes probable cause for a search warrant. Evidence derived

from an illegal search can be suppressed as the “fruit of the poisonous tree.”

Segura v. United States, 468 U.S. 796, 804 (1984). Derivative evidence need not

be suppressed if the connection between the illegal police conduct and the

challenged evidence is “so attenuated as to dissipate the taint.” Id. at 805

(quotation omitted). Prior to making the contested statement, Roof had been

handcuffed and arrested. Roof made the contested statement shortly after seeing

the deputies go through his house and hearing the police officers claim to have
                                         -17-
found a methamphetamine lab within it. His statement was therefore not so

attenuated from the illegal sweep as to dissipate the taint. Because this court can

only consider the parts of the affidavit that are purged of the unlawfully obtained

information, see Snow, 919 F.2d at 1460, it declines to consider Roof’s statement

in analyzing whether the affidavit established probable cause for the search

warrant.

      Because the affidavit, when purged of its tainted testimony, does not

establish probable cause for a search warrant, the inevitable discovery rule does

not render the suppressed evidence admissible. Therefore, the district court did

not commit plain error in failing to sua sponte consider this theory.

IV. CONCLUSION

      For the foregoing reasons, this court AFFIRMS the district court’s grant of

Roof’s Motion to Suppress.

                                                ENTERED FOR THE COURT



                                                Michael R. Murphy
                                                Circuit Judge




                                         -18-
