          United States Court of Appeals
                        For the First Circuit


Nos. 18-1661, 18-1664

                    UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                        SANDY HERNANDEZ-MIESES,

                         Defendant, Appellant.


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

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                                Before

                 Torruella, Lipez, and Thompson,
                         Circuit Judges.


     Rafael F. Castro Lang 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.


                             July 31, 2019
              LIPEZ, Circuit Judge.          Sandy Hernandez-Mieses appeals

from the district court's partial denial of his motion to suppress

evidence seized from his home on the day of his arrest on drug and

money laundering charges in Cataño, Puerto Rico.                 Specifically, he

challenges     the    district     court's     conclusion     that   federal   law

enforcement agents validly relied on exceptions to the warrant

requirement when they searched his home, a cargo van inside his

garage, and a minivan parked in his driveway.                    He also asserts

more broadly that the entire operation was tainted by the agents'

unlawful intention to execute a warrantless search even before

they entered his home to execute the arrest warrant.

      After     careful      review,    we   affirm     the   district    court's

determination that a gun, cellphones, and cash were lawfully seized

from the first floor, and we reject Hernandez-Mieses's contention

that the entire operation was tainted.            However, because we cannot

determine on this record that the cellphones on the second floor

and the drugs in the cargo van were lawfully seized, we vacate the

district court's denial of suppression as to those items and remand

for further findings concerning the duration and scope of the

purported protective sweep.            We also vacate and remand as to the

application of the automobile exception to the cargo van so that

the   district       court   can   reconsider     the    issue    based   on   its

conclusions regarding the sweep.             Finally, we vacate the district

court's order as to the items seized from the minivan and remand


                                       - 2 -
so that the district court can determine in the first instance

whether the minivan was within the curtilage of Hernandez-Mieses's

home.

                                          I.

        We   recount   the    facts   as       found   by   the     district   court,

consistent with record support, with the addition of undisputed

facts drawn from the suppression hearing.                   See United States v.

Dancy, 640 F.3d 455, 458 (1st Cir. 2011).                   Hernandez-Mieses was

charged,       along   with    five      co-defendants,       in     a   seven-count

indictment alleging a conspiracy to import and distribute cocaine.

These charges arose from "Operation Beach Break," a maritime drug

smuggling investigation by the Caribbean Corridor Strike Force of

Homeland Security Investigations ("HSI").

        On November 1, 2016, federal agents executed an arrest warrant

for Hernandez-Mieses at his home outside San Juan.                          Among the

agents       was   Ricardo    Nazario,     a    special     agent    with    HSI   for

approximately sixteen years and a group supervisor with the Strike

Force for the previous seven.              Nazario had previously surveilled

Hernandez-Mieses at this home and knew that he used a wheelchair.

Before executing the arrest warrant, Nazario briefed the other

agents on the high probability that they might encounter weapons,

narcotics, and cash inside the house.              Approximately twenty agents

with ten vehicles were involved in executing the arrest warrant,




                                         - 3 -
and they were accompanied by Honzo, a Customs and Border Protection

dog trained to detect both concealed humans and narcotics.

     The    agents    arrived   at     what        Nazario    described   as     an

"average"-sized, two-story house at around 5:45 AM.               Upon arrival,

Nazario noticed that the first floor lights were on and observed

shadows of several individuals through the frosted-glass front

windows.      Nazario   was   not    expecting       that    people   other    than

Hernandez-Mieses would be in the house, or that anybody would be

awake at the time.      He approached the frosted-glass front door,

accompanied by another special agent, and announced himself as the

police.     He then saw the shadow of a person approach the front

door and lock it from the inside.             Nazario and the other agent

broke the frosted glass in two places and looked through the

openings.     From the photographs admitted into evidence at the

suppression hearing and Nazario's testimony, it appears that the

first floor was essentially an open space with four modes of

egress: the front door; sliding doors leading to the back terrace;

a side door leading from the kitchen to the pool area and garage;

and stairs leading to the second floor.

     Nazario    saw   Hernandez-Mieses        in    his   wheelchair    near    the

dining table with two other individuals.              Nazario reached through

one of the holes in the door, unlocked it, and chased the two men,

who fled through the back terrace doors and jumped the property's

rear fence.      During this initial brief pursuit, other agents


                                     - 4 -
entered the house behind Nazario and handcuffed Hernandez-Mieses.

All told, approximately ten agents entered the house and ten

remained outside to secure the perimeter, which was accomplished

shortly after the arrest.

     Having lost the fleeing individuals,1 Nazario returned from

the terrace and observed a Glock handgun on the kitchen counter,

approximately ten feet from where Hernandez-Mieses was sitting and

close to the staircase leading to the second floor.     The agents

observed four cellphones and a bag with cash on the dining table.2

Nazario also observed that the door from the kitchen to the

adjacent swimming pool area and garage was open.

     Nazario then ordered what he characterized as a protective

sweep of the house based on his expressed concern that there could

be people hiding who might pose a threat to the agents.3     Honzo

accompanied the agents during the sweep.     After taking five to




     1 Nazario directed two agents who were securing the perimeter
to pursue the men who fled. One man, Yonathan Jimenez-Diaz, was
apprehended a few blocks away, while the other, Oniel Lajara-De La
Cruz, remained a fugitive at the time of the suppression hearing.

     2The relationship between the bag and the cash is not entirely
clear from the record -- that is, it is unclear whether the cash
was outside the bag or inside the bag but nonetheless visible.
Regardless, Hernandez-Mieses has not contended that the agents had
to open or otherwise manipulate the bag to observe the cash.

     3 Nazario and the government referred to a "security sweep"
throughout the suppression hearing, but we will use the more common
"protective sweep," as the parties do in their briefing.



                              - 5 -
seven minutes to sweep the first floor, including a bathroom, the

agents   proceeded   to   the    second   floor,    where   they   swept   two

bedrooms, two bathrooms, and a master bedroom.               In one of the

bedrooms, Honzo alerted to a bag in front of the bed containing

four kilograms of cocaine.        Nazario also observed four cellphones

on the bed in that room.        In the master bedroom, Honzo "alerted to

and opened" a shoebox inside the closet, which contained $34,000

in cash.

     The agents proceeded through the open door off the kitchen to

the garage, where they saw a cargo van.4           Nazario touched the hood

of the cargo van, which was hot; noticed that the tires were

covered with sand and mud and that there was water dripping from

the cargo area; and smelled saltwater and fuel.

     Nazario, who was accompanied by five other agents, said he

opened the cargo van's unlocked rear doors to "[s]earch[] for

people hiding."      Inside, Nazario observed more than forty wet,

sandy bales of what he took to be narcotics.5               The agents also


     4 The frosted-glass garage door opening onto the driveway was
closed.

     5 The bales were marked with different logos (for example,
"Harley Davidson Motorcycles," "NBA," and a smiley face) that
Nazario recognized, based on his experience, as the type of marking
drug traffickers use to identify drug deliveries. The district
court found, and the record supports, that Honzo alerted at the
bales after the van was opened.      At some point, a field test
confirmed that the bales contained approximately 1,700 kilograms
of cocaine.



                                    - 6 -
looked in a closet next to the van.                According to Nazario, the

sweep was completed once the agents swept the garage, approximately

twenty-two minutes after they arrived at the house.6

       The agents then called a government attorney, who told them

that they could perform a full search of the house.               Before doing

so, however, Nazario approached the minivan parked in the driveway

in   front     of   the   garage   door,   which    he   had   previously   seen

Hernandez-Mieses driving.          Nazario observed sand on the tires and

interior carpet, and he touched the hood, ascertaining that it was

hot.       Using keys located on top of the dining table, the agents

unlocked the minivan and searched the interior. Among other items,

they found a loaded Glock in the compartment between the two front

seats, a paper bag full of money in front of that compartment, and

a wallet in the passenger door containing identification documents

for Lajara-De La Cruz.7        The agents then performed a comprehensive




       6
       The district court supportably found, based on call logs in
the record, that "between 5:45 a.m. and 6:07 a.m. (22 minutes),
the law enforcement agents arrived at the scene, arrested
Hernandez, [and] performed [the] protective sweep." United States
v. Hernandez-Mieses, 257 F. Supp. 3d 165, 174 n.8 (D.P.R. 2017).
Nazario indicated that the agents also swept the perimeter areas
of the house (such as the pool area and back terrace), but it is
unclear when this was done.     Nazario did not suggest that the
agents who swept the house's interior also swept the perimeter.

       7
       At some point, agents also searched another vehicle parked
in front of the house, but nothing was seized. That vehicle was
registered to Hernandez-Mieses. The minivan was registered to his
wife, and the cargo van was registered to a third party.


                                      - 7 -
search of the house and seized multiple incriminating items,

including cash, a firearm, and ammunition.

        After his arrest and the search, Hernandez-Mieses was charged

in a second indictment along with Jimenez-Diaz and Lajara-De La

Cruz.     Hernandez-Mieses filed a motion to suppress all evidence

seized from his house on the day of his arrest.     After a hearing,

at which agent Nazario was the sole witness, the district court

suppressed the drugs and cash found by Honzo on the second floor

and all evidence seized during the warrantless search of the house

conducted after the agents called the government attorney.     But it

declined to suppress the gun and cash found on the first floor,

the cellphones found in the bedroom on the second floor, the drugs

found in the cargo van, and the items found in the minivan.    After

the district court denied his motion for reconsideration, which

focused on the cargo van, Hernandez-Mieses entered a joint straight

plea to both indictments, reserving his right to appeal the

district court's suppression order.      He was sentenced to a total

of 180 months of imprisonment on the two indictments.    This timely

appeal followed.

                                  II.

        When reviewing a district court's denial of a motion to

suppress, we ordinarily assess the district court's findings of

fact for clear error and its conclusions of law de novo.      United

States v. Ackies, 918 F.3d 190, 197 (1st Cir. 2019).          If the


                                 - 8 -
evidence at issue was seized during a warrantless search, "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).

       The   Fourth      Amendment        protects      all     persons     "against

unreasonable search and seizures." U.S. Const. amend. IV. Because

"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)(internal quotation marks omitted), "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). Hernandez-Mieses concedes that the agents possessed a valid

arrest warrant, which entitled them to enter his home to arrest

him.     See Payton, 445 U.S. at 603.                 But he contends that the

agents' actions were tainted because they also intended to perform

a warrantless search of his home.                   Moreover, regardless of the

agents' intent, he contends that their actions did not fit any

exception to the warrant requirement and were therefore unlawful;

in particular, he argues that the agents were not effectuating a

lawful protective sweep when they spotted the cellphones in the

second floor bedroom and the drugs in the cargo van.                   Finally, he

contends that the agents had no lawful basis for searching the

minivan in the driveway.


                                          - 9 -
A.   Agents' Intention to Perform a Warrantless Search

       Hernandez-Mieses      contends    that   the    agents'    actions    were

tainted from the start by a pre-existing intention to perform a

warrantless search of his entire home before they had any basis

for doing so.      Because he did not raise this argument before the

district court, it may well be deemed waived.                 See, e.g., United

States v. Reyes-Rivas, 909 F.3d 466, 470 n.2 (1st Cir. 2018).                But

even if it was not forfeited or waived, the argument is plainly

without   merit.      As    a   matter   of   law,    "[a]    police   officer's

subjective motive, even if improper, cannot sour an objectively

reasonable search."        Spencer v. Roche, 659 F.3d 142, 149 (1st Cir.

2011).    We also reject the factual premise of Hernandez-Mieses's

argument.     To support his contention that the agents harbored a

pre-existing intention to perform a warrantless search, Hernandez-

Mieses points to Nazario's briefing of the other agents, during

which Nazario told them that "there was a high probability of

finding weapons, narcotics, and currency in the house."                 But, as

Nazario   explained    during     his    testimony,     this     statement   can

reasonably be understood as a notice or reminder to his colleagues

that   they   were    likely    to   "encounter       those    items   [weapons,

narcotics, and currency] inside the house."                  Indeed, the agents

did encounter a weapon and cash in plain view while arresting

Hernandez-Mieses.      We discern no suggestion of an intention to

perform a warrantless search from Nazario's briefing.


                                     - 10 -
      Hernandez-Mieses also points to the agents' use of Honzo.

Specifically, he asserts that they brought Honzo into the house as

soon as they entered to arrest Hernandez-Mieses, suggesting that

they intended to use the dog to effect a warrantless search from

the   start.   But   again,   Hernandez-Mieses   misreads   the   facts.

Nazario's testimony is clear that although Honzo "tagged along"

with the agents when they went to the house to execute the arrest

warrant, the dog did not enter until Nazario ordered the sweep.8

      Accordingly, we reject Hernandez-Mieses's argument both as a

matter of law and of fact.

B. Seizure of Cash, Cellphones, and Gun from First Floor (Plain
View)

      The district court determined that the government lawfully

seized the cash and four cellphones from the dining table and the

gun from the kitchen counter pursuant to the "plain view" doctrine.

That doctrine "permits the warrantless seizure of an item if the

officer is lawfully present in a position from which the item is

clearly visible, there is probable cause to seize the item, and

the officer has a lawful right of access to the item itself."

United States v. Gamache, 792 F.3d 194, 199 (1st Cir. 2015).         We




      8The record is not entirely clear as to whether Honzo entered
the house at the start of the sweep or entered when the agents
proceeded to the second floor. In any event, this distinction is
immaterial to our analysis.


                                - 11 -
review a district court's conclusion that the plain view doctrine

applies for clear error.     See id.

     Hernandez-Mieses has offered no developed argument that the

district court erred in applying the plain view doctrine, and any

such argument is therefore waived.          See United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990).      What is more, even absent waiver,

this contention of error would be unavailing.           By virtue of the

arrest warrant, the agents were lawfully in a position from which

the cash, cellphones, and gun "were easily visible to the naked

eye," United States v. Sanchez, 612 F.3d 1, 5 (1st Cir. 2010), and

the incriminating nature of those items as common tools of the

drug trade was apparent.       See Minnesota v. Dickerson, 508 U.S.

366, 375 (1993); see also United States v. Martinez-Molina, 64

F.3d 719, 728 (1st Cir. 1995) (recognizing that cellphones are

known    tools   of   the   drug    trade).        We   therefore   reject

Hernandez-Mieses's contention that the cash, cellphones, and gun

should be suppressed.

C. Seizure of Cellphones from Second Floor and Drugs from Cargo
Van (Protective Sweep)

     The district court determined that the agents lawfully seized

the four cellphones from the upstairs bedroom and the drugs from

the cargo van because they were found during a lawful protective

sweep.   Hernandez-Mieses does not contest that the cellphones were

in plain view to anyone in the upstairs bedroom, or that the drug



                                   - 12 -
bales were in plain view once the agents opened the cargo van.9

Rather, he contends that the agents did not have a right to enter

the upstairs bedroom or open the cargo van because they were not

executing a protective sweep when they accessed those locations.

We review de novo the question of whether a warrantless search was

a permissible protective sweep.      Winston, 444 F.3d at 118.

        1. Applicable Law

        The Supreme Court has described a "protective sweep" as "a

quick and limited search of premises," usually incident to an

arrest, that is "conducted to protect the safety of police officers

or others" at the scene.        Maryland v. Buie, 494 U.S. 325, 327

(1990).       Such a search is "narrowly confined to a cursory visual

inspection of those places in which a person might be hiding."

Id.10        For law enforcement to justify a protective sweep, the

officers must have a "reasonable suspicion of danger," that is,

"there must be articulable facts which, taken together with the

rational inferences from those facts, would warrant a reasonably


        9
       See United States v. Banks, 884 F.3d 998, 1015-16 (10th Cir.
2018) ("Generally, officers can seize any incriminating items that
they find in plain view during a protective sweep.").
        10
        The Court in Buie also noted that, "as a precautionary
matter and without probable cause or reasonable suspicion,"
officers are permitted to "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. That type of
warrantless search is not at issue in this case because the
cellphones on the second floor and the drugs in the cargo van were
not found in immediate proximity to Hernandez-Mieses.


                                  - 13 -
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. "[A] mere 'inchoate and unparticularized suspicion or hunch'"

that someone is hiding who could pose a danger to the arresting

officers is not enough to support a protective sweep.              Id. at 332

(quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). But the reasonable

suspicion standard "is considerably less demanding than the level

of   proof   required   to   support   a   finding   of   probable   cause."

Winston, 444 F.3d at 118.         And we are ordinarily hesitant to

second-guess an officer's determination that a protective sweep is

necessary:    "[T]he    experienced    perceptions   of    law   enforcement

agents   deserve   deference    and    constitute    a    factor    in    [the]

reasonable suspicion analysis."        Id. at 119.

      Reasonable suspicion, however, is just part of the analysis.

A protective sweep also must be limited in scope to "a cursory

visual inspection of those places in which a person might be

hiding."     Buie, 494 U.S. at 327; see also United States v.

Nascimento, 491 F.3d 25, 49 (1st Cir. 2007) (assuming that a

protective sweep would not allow looking inside a cabinet "too

small to accommodate a person").           And, of crucial importance in

this case, a protective sweep must be limited in duration and

"last[] no longer than is necessary to dispel the reasonable

suspicion of danger and in any event no longer than it takes to




                                  - 14 -
complete the arrest and depart the premises."        Buie, 494 U.S. at

335-36.

      The sweep in Buie, the case in which the Supreme Court first

articulated the modern protective sweep doctrine, illustrates the

type of cursory search that the doctrine contemplates. The Supreme

Court described Buie's arrest and the ensuing sweep as follows:

      Once inside [the house to execute the arrest warrant],
      the officers fanned out through the first and second
      floors. Corporal James Rozar announced that he would
      "freeze" the basement so that no one could come up and
      surprise the officers. With his service revolver drawn,
      Rozar twice shouted into the basement, ordering anyone
      down there to come out . . . . Eventually, a pair of
      hands appeared around the bottom of the stairwell
      and Buie emerged from the basement. He was arrested,
      searched, and handcuffed by Rozar. Thereafter, [another
      officer] entered the basement "in case there was someone
      else" down there. He noticed a red running suit lying
      in plain view on a stack of clothing and seized it.

Buie, 494 U.S. at 328 (citation omitted).11         Thus, the sweep in

Buie was demonstrably a cursory scan of the area from which the

defendant had just emerged after initially hiding from the officers

who   had   come   to   arrest   him.   See   Cursory,   Merriam-Webster

Dictionary,        https://www.merriamwebster.com/dictionary/cursory

(defining "cursory" as "rapidly and often superficially performed

or produced").




      11
       The Court in Buie remanded for the state court to apply the
newly enunciated standard for protective sweeps to the basement
search at issue.


                                   - 15 -
     Consistent with Buie, courts have typically approved only

short   sweeps   when   expressly    considering   duration   in   cases

involving the sweep of a home.      See United States v. Alatorre, 863

F.3d 810, 815 (8th Cir. 2017) (protective sweep of four rooms on

one floor of residence "lasted two minutes"); United States v.

Silva, 865 F.3d 238, 243 (5th Cir. 2017) (sweep of trailer home

lasted less than a minute); United States v. Contreras, 820 F.3d

255, 269 (7th Cir. 2016) (protective sweep of house "lasted less

than a minute"); United States v. Henderson, 748 F.3d 788, 793

(7th Cir. 2014) (protective sweep of house lasted "no longer than

five minutes"); United States v. Laudermilt, 677 F.3d 605, 608–09

(4th Cir. 2012) (sweep of    two-story house "from start to finish,

lasted about five minutes"); United States v. Hauk, 412 F.3d 1179,

1184 (10th Cir. 2005) (sweep of residence "lasted approximately

five to ten minutes"); United States v. Flowers, 424 Fed. App'x

302, 303 (5th Cir. 2011) (protective sweep of two-story house and

garage "lasted no longer than five minutes"); see also Fishbein ex

rel. Fishbein v. City of Glenwood Springs, Colo., 469 F.3d 957,

959 (10th Cir. 2006) (noting, in the context of rejecting a civil

suit challenge to a protective sweep, that "estimates regarding

how long the officers were in the home range from thirty seconds

to slightly less than five minutes"); but see Gomez v. Feissner,

474 Fed. App'x 53, 56 (3d Cir. 2012) (holding that officer was




                                - 16 -
entitled to qualified immunity from claim that protective sweep

lasting five to fifteen minutes was unlawful).

     While we do not suggest that a purported sweep of a certain

duration should necessarily be deemed invalid per se, the length

of the sweep obviously is an important factor in assessing its

lawfulness.   Courts have recognized that a short sweep is an

indication that the search was truly cursory in nature. See, e.g.,

United States v. Burrows, 48 F.3d 1011, 1017 (7th Cir. 1995) ("The

record supports the determination that the search of the four

bedrooms and linen closet, which required the officers to force

four locked doors, took no more than five minutes, an interval

compatible with the officers' legitimate purpose."); United States

v. Hogan, 38 F.3d 1148, 1150 (10th Cir. 1994) ("[I]t appears from

the officer's testimony that the protective sweep could have truly

been cursory and ended . . . a few minutes after the arrest.");

see also United States v. Lesane, 685 Fed. App'x 705, 722 (11th

Cir. 2017) (noting that protective sweep of single-story house

"took no longer than three or four minutes, lending support to the

conclusion that the sweep was cursory in nature").

     2. Application of the Law to the Facts

     Reviewing the facts known to the agents, we readily conclude

that a reasonable officer would have held a reasonable suspicion

of danger supporting a protective sweep.      See United States v.

Delgado-Pérez, 867 F.3d 244, 252 (1st Cir. 2017) (explaining that


                             - 17 -
we consider whether "the facts available at the moment of the

.   .    . search [would support] a man of reasonable caution in the

belief that the action taken was appropriate").

        At the time the officers arrested Hernandez-Mieses, they knew

the following: they had arrived at the house at 5:45 AM and found

multiple people up and about; when they approached the front door,

they saw the shadows of several people through frosted glass; when

they announced themselves, a person inside locked the door; when

they entered, they saw three people, but observed four cellphones

on the table; they observed a gun; finally, they saw a staircase

close to the counter where the gun was found and an open door

leading from the kitchen to the pool area and garage.             In short,

there was a wealth of information supporting a reasonable suspicion

that an armed person could be hidden on the first floor, or could

have fled to the second floor or out the open door off the kitchen,

between the time the agents announced themselves and the time they

entered the house.       This case is therefore distinguishable from

those in which we have determined a purported protective sweep was

invalid because (a) there was a complete lack of objective facts

supporting a reasonable suspicion that a dangerous person could be

hiding     in   the   area   searched,   see,   e.g.,    United   States   v.

Serrano-Acevedo,       892    F.3d    454,    459-60    (1st   Cir.   2018);

Delgado-Pérez, 867 F.3d at 253-54, or (b) the facts supported a




                                     - 18 -
contrary belief that the area searched was in fact empty, see

United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003).

     However, as we have noted, reasonable suspicion is just part

of the analysis.   On this record, we have concerns that the search

of the second floor and the cargo van may not have been consistent

with a protective sweep's limited duration and scope.       See Buie,

494 U.S. at 327, 335-36.   For example, if the sweep took the major

part of the twenty-two minutes from when the agents arrived at the

house until they called the government attorney, the sweep would

have been longer than those typically approved in comparable

situations.   See supra Section II.C.1.   Indeed, the sweep of the

first floor alone -- five to seven minutes -- matched or exceeded

the length of some sweeps of entire residences.   See id.    Further,

the problematic implication of the sweep's lengthy duration is

compounded by the large number of agents on the scene.        Nazario

testified that at least ten officers entered the house, and that,

when he opened the cargo van, at least five officers were present.

It stands to reason that the large number of agents conducting the

sweep should have resulted in a search of shorter duration.

     The scope of the sweep also prompts concerns in the sense

that the agents' actions in this case suggest that this may not

have been the cursory sweep required by the Supreme Court.        The

agents twice paused to inspect evidence in areas where no person

could hide and that were not in plain view.       In particular, in


                               - 19 -
suppressing the drugs the agents found in one of the upstairs

bedrooms, the district court concluded that the cocaine bricks

were not in plain view, meaning that the agents had to have

manipulated or otherwise searched the bag containing the cocaine

bricks to observe them.    See United States v. Hernandez-Mieses,

257 F. Supp. 3d 165, 180-81 (D.P.R. 2017).   This conduct suggests

that the agents were searching for contraband rather than for

dangerous persons.

     All that said, however, there are crucial gaps in the record

relating to the protective sweep.      In particular, the district

court did not make an explicit finding as to how long it took for

the agents to enter the house and arrest Hernandez-Mieses before

commencing the sweep.12   The longer it took for them to commence

the sweep, the shorter the sweep and the more likely it was

consistent with the durational component of Buie.     The district

court also did not make explicit findings about how many agents

conducted the sweep -- that is, we know ten agents were in the

house and that five agents were present when Nazario opened the




     12 Hernandez-Mieses does not argue that there was an undue
delay between when the agents entered his home and the commencement
of the sweep. See, e.g., United States v. Dabrezil, 603 Fed. App'x
756, 760 (11th Cir. 2015) (considering whether it was objectively
reasonable for an officer arriving on the scene to commence a sweep
seven to twenty-five minutes after other officers had entered the
apartment).



                              - 20 -
cargo van, but it is unclear how many agents swept the two floors

of the house.

     In light of these important factual gaps in the record on the

protective sweep issue, we conclude that a remand is appropriate.

Ordinarily, we would not remand so that a party that failed to

carry its burden (here, the government) would get a second chance

to do so.    But the circumstances here are unusual.     Although

Hernandez-Mieses clearly challenged the legality of the sweep

before the district court, he focused on his contention that the

agents lacked reasonable suspicion that a dangerous person or

persons were hiding on the scene.   By not focusing on the sweep's

duration and scope, important elements of the protective sweep

analysis, Hernandez-Mieses bears some responsibility for the lack

of focus by the government and the district court on these aspects

of the sweep.    Therefore, we think it appropriate, in these

circumstances, to vacate the district court's determination that

the sweep was lawful and remand for the court to develop the

factual record as to the sweep's duration and scope, with a

particular focus on how much of the twenty-two-minute window

between when the agents arrived at the house and when they called

the government attorney was taken up by the sweep.   Based on its

further factual findings, the district court should then determine

whether the government has met its burden of demonstrating the




                             - 21 -
sweep's legality.13         If the government can demonstrate that the

sweep was consistent with Buie, the agents clearly were entitled

to look in the back of the cargo van, given the district court's

unchallenged finding that the vehicle was "big enough to harbor

several individuals."         Hernandez-Mieses, 257 F. Supp. 3d at 183;

see Buie, 494 U.S. at 327 (defining a protective sweep as "a

cursory visual inspection of those places in which a person might

be hiding" (emphasis added)).

D.   Seizure of Drugs from Cargo Van (Automobile Exception)

      As an alternative basis for seizing the drugs from the cargo

van, apart from the protective sweep, the government argues, and

the district court determined, that the drugs were also lawfully

seized     pursuant    to   the   automobile   exception   to   the   warrant

requirement.14        The automobile exception permits a warrantless

search of a vehicle if there is probable cause to believe that

evidence of a crime or contraband will be found in the vehicle.

See United States v. Kennedy, 881 F.3d 14, 18 (1st Cir. 2018).

The district court treated the automobile exception issue as


      13To be clear, we are not retaining jurisdiction of this
case.   Rather, upon remand, the district court should make its
findings and draw its legal conclusions, and the parties can then
decide if a new appeal is warranted.
      14The district court further determined that the search of
the cargo van was warranted by "exigent circumstances" arising
from   the   "hot  pursuit"   of   the   two fleeing   men.   See
Hernandez-Mieses, 257 F. Supp. 3d at 186. The government does not
pursue this theory on appeal.


                                     - 22 -
entirely distinct from the protective sweep.                 After the district

court issued its suppression order, however, the Supreme Court

issued a decision that reveals the flaw in that approach.

       In Collins v. Virginia, the Court rejected a warrantless

search of a motorcycle parked in a partially enclosed section of

the defendant's driveway that the officer justified on the basis

of the automobile exception.          138 S. Ct. 1663, 1671 (2018).             The

Court held that the automobile exception by itself "does not afford

the necessary lawful right of access to search a vehicle parked

within a home or its curtilage because it does not justify an

intrusion on a person's separate and substantial Fourth Amendment

interest in his home and curtilage."             Id. at 1672.    In other words,

if   an    officer   wants    to   search   a    vehicle    located   within    the

curtilage of a home based on the automobile exception, the officer

must first have a lawful basis for accessing the vehicle.                  See id.

("Just as an officer must have a lawful right of access to any

contraband he discovers in plain view in order to seize it without

a warrant[,] . . . so, too, an officer must have a lawful right of

access     to   a   vehicle   in   order    to   search    it   pursuant   to   the

automobile exception.").

       The district court did not specifically consider whether the

cargo van was within the curtilage, but there is no doubt that it

was.      It was parked in the attached garage, and attached garages

are typically part of a home's curtilage.                  See United States v.


                                      - 23 -
Dunn, 480 U.S. 294, 307-08 (1987) ("[T]he general rule is that

the [c]urtilage includes all outbuildings used in connection with

a residence, such as garages . . . connected with and in close

vicinity    of   the   residence."      (second    alteration       in   original)

(internal    quotation      marks    omitted)).      Thus,    to    rely   on   the

automobile exception to search the cargo van, the agents needed a

lawful basis for entering the garage.

     As described above, the agents' putative reason for entering

the garage was to conduct the protective sweep.                    Therefore, the

agents'    recourse    to   the     automobile    exception   depends      on   the

legality of the sweep.        We therefore vacate the district court's

judgment as to the application of the automobile exception to the

cargo van.       On remand, the district court should reassess the

automobile exception issue in relation to the cargo van depending

on the court's determination regarding the protective sweep.15                   We

note, however, that it would be unnecessary for the government to

pursue this alternative theory on remand.             If the district court

determines that the protective sweep was lawful, as described

above, the agents had a basis for entering the garage and for



     15The government has not argued that the search of the cargo
van pursuant to the automobile exception was permissible because
the agents were acting in good-faith reliance on pre-Collins
precedent.   We make no judgment on the viability of any such
argument.




                                      - 24 -
opening the cargo van.          If the district court determines that the

protective sweep was not lawful, the agents did not have any basis

for    entering     the    garage,     and     the    automobile    exception    is

unavailable.

E. Seizure of Evidence from Minivan (Automobile Exception)

       The district court also denied suppression of the items seized

from the minivan parked in the driveway based on the automobile

exception to the warrant requirement.                Again, in light of Collins,

we    face   the   question     of   whether    the    minivan   was   within   the

curtilage, and if so, whether the agents had lawful access to the

vehicle.

       It is well established that where there is some doubt about

whether an area is part of the home's curtilage, a court must

consider

       [1] the proximity of the area claimed to be curtilage to
       the home, [2] whether the area is included within an
       enclosure surrounding the home, [3] the nature of the
       uses to which the area is put, and [4] the steps taken
       by the resident to protect the area from observation by
       people passing by.

Dunn, 480 U.S. at 301; see United States v. Owens, 917 F.3d 26,

34-35 (1st Cir. 2019), petition for certiorari pending, No. 19-21

(filed July 3, 2019) (noting that the Dunn factors should be

applied to determine whether a particular driveway is part of the

curtilage).        The Court did not make any findings regarding the

Dunn    factors,     and   we    are   loath     to    make   the   fact-specific



                                       - 25 -
determination     in     the   first      instance.     Although     there     are

photographs of the driveway in the record that establish its

proximity to the home and the fact that it was not enclosed, the

record is not developed as to Dunn factors 3 (nature of the uses)

and 4 (steps taken by the resident to protect the area from

observation).     The fact that the minivan "was parked in an open

space and could be seen from the street," Hernandez-Mieses, 257 F.

Supp. 3d at 174, is not dispositive, see Collins, 138 S. Ct. at

1675 ("So long as it is curtilage, a parking patio . . . into which

an   officer   can     see   from   the   street   is   no   less   entitled    to

protection from trespass and a warrantless search than a fully

enclosed garage.").

      We therefore vacate and remand as to the search of the minivan

so that the district court can determine whether the vehicle was

within the curtilage.           If it was, the district court should

determine whether the agents had any lawful basis -- other than a

protective sweep -- for accessing the vehicle.16              See Collins, 138

S. Ct. at 1672.      If the district court determines that the minivan

was not within the curtilage, the court should determine whether

the agents had probable cause to search the vehicle pursuant to




      16Nazario testified that the purported protective sweep
concluded with the search of the garage, and the government did
not argue that the minivan was accessed or searched pursuant to a
protective sweep.


                                       - 26 -
the   automobile   exception   without   relying   on   any    unlawfully

obtained information.

                                 III.

           For the foregoing reasons, we affirm in part and vacate

and remand in part the district court's suppression order.            The

district court correctly determined that the gun, cellphones, and

cash found on the first floor were lawfully seized.           However, we

vacate and remand as to the cellphones on the second floor and the

drugs in the cargo van so that the district court can make further

findings as to the duration and scope of the purported protective

sweep.   We also vacate and remand as to the application of the

automobile exception to the cargo van so that the district court

can reconsider the issue based on its conclusions regarding the

sweep.   Finally, we vacate and remand as to the items seized from

the minivan so that the district court can determine whether that

vehicle was within the curtilage.

           So ordered.




                                - 27 -
