                                           PRECEDENTIAL


    IN THE UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
            ________________________

                       No. 13-2130
                ________________________

             UNITED STATES OF AMERICA

                             v.

              JOSEPH VINCENT WHITE,
                      Appellant
      _______________________________________

      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
          (District Court No. 12-cr-00411-001)
           District Judge: Hon. Stewart Dalzell
                       __________

                  Argued January 22, 2014


    Before: FUENTES and FISHER, Circuit Judges, and
                STARK, * District Judge


*
 Honorable Leonard P. Stark, United States District Court for
the District of Delaware, sitting by designation.
              (Opinion Filed: April 14, 2014)

              ________________________


   Zane David Memeger, Esq.
   Robert A. Zauzmer, Esq.
   Robert J. Livermore, Esq.
   Paul G. Shapiro, Esq. [ARGUED]
   U.S. Department of Justice
   615 Chestnut Street, Suite 1250
   Philadelphia, PA 19106
             Counsel for Appellee

   Leigh M. Skipper, Esq.
   Brett G. Sweitzer, Esq.
   Sarah S. Gannett, Esq.
   Keith M. Donoghue, Esq. [ARGUED]
   Federal Community Defender Office
   For the Eastern District of Pennsylvania
   Suite 540 West - Curtis Center
   601 Walnut Street
   Philadelphia, PA 19106
             Counsel for Appellant

              ________________________

               OPINION OF THE COURT
              ________________________


STARK, District Judge




                             2
       Joseph Vincent White appeals the denial of his motion
to suppress evidence of his unlawful possession of two
firearms. Because we conclude the District Court erred in its
legal analysis, we vacate its order and remand for further
proceedings.
                              I
                             A1

       In the early morning of April 12, 2012, Pennsylvania
State Police Troopers James John Hoban, Jr. and Travis Hill
were radioed from their dispatch station about a potential
domestic disturbance between a father and his daughter. The
dispatch supervisor stated “something to the effect of”
someone “under the influence of drugs or alcohol” was
“waving a loaded firearm around” and “dragging his daughter
from room to room,” or may have been “barricaded inside the
bathroom.” (A67-68) The daughter’s boyfriend had reported
the incident to police, relaying information the daughter was
sending him via text message. The dispatcher further advised
the troopers that the father was believed to be the defendant,
White, who on a prior occasion had fought with the police
and resisted arrest.

       Within approximately 15 minutes, Troopers Hoban
and Hill arrived at the residence, which was a trailer home
with a mud room attached to the front. The troopers observed
two individuals looking out from behind the screen door of
the mud room. With their guns drawn, the troopers ordered
both individuals to come outside. The taller of the two – who
turned out to be White – emerged first and walked unsteadily

1
This appeal does not involve any challenge to the District
Court’s findings of fact.




                              3
towards the troopers, leading them to conclude he was
intoxicated or under the influence of drugs. When White was
at a distance of about 20 feet from the entrance to the home,
the troopers instructed him to lay face down on the ground;
White complied and was handcuffed. Trooper Hill then
escorted White to the police cruiser, which was parked farther
away from the residence, conducted a pat down search, and
found that White was not in possession of a firearm or any
other weapon.

       The second of the two individuals, White’s adult
daughter, Samantha White, came out of the home slightly
behind her father. Samantha hesitated to come all the way
towards the officers, instead remaining approximately five to
ten feet away from the entrance to the residence. Given her
size and apparent victim status, Trooper Hoban decided there
was no need to handcuff Samantha. When he asked her if
anyone was in the home, she responded there was not.

        Trooper Hoban decided to check for himself. As he
walked into the front door of the mud room, Trooper Hoban
saw two guns – a revolver and a shotgun – lying on the floor
just inside the threshold, the same area in which the troopers
had first seen White and Samantha upon arriving at the
residence. Trooper Hoban seized the guns, carried them to
the police cruiser, and placed them in the trunk. He then
returned to the home and, with Samantha, walked through the
rooms, finding no other person but observing several gun
cases and a partly burnt marijuana cigarette, none of which he
seized.

       Additional troopers arrived on the scene. At some
point, an officer advised White of his Miranda rights and




                              4
asked whether he had any other firearms. White stated he
was a gun collector, owned many firearms, and had been
carrying the guns because he believed there were people
trying to kill him. He also said he had shot at some animals
on his property earlier that day. 2

       Weeks later, on May 4, 2012, after obtaining a search
warrant based in part on the two firearms Trooper Hoban
seized from inside the mud room of the home, police
executed a search of the residence and seized 91 additional
firearms.
                             B

       On August 8, 2012, a grand jury sitting in the Eastern
District of Pennsylvania returned an indictment charging
White with unlawful possession of a firearm by a person
previously convicted of a felony, in violation of 18 U.S.C. §
922(g). The charge was based on White’s possession of the
revolver and shotgun uncovered during Trooper Hoban’s
search. White moved to suppress those two firearms plus the
additional guns seized during execution of the search warrant,
as well as any inculpatory statements he made. Specifically
with respect to the revolver and shotgun, White argued that

2
 Given its determination that the search was not unlawful, the
District Court did not reach the issue of whether White’s
statements should be suppressed as “fruits of the poisonous
tree.” See Murray v. United States, 487 U.S. 533, 536-37
(1988) (requiring suppression of evidence “acquired as an
indirect result of [an] unlawful search, up to the point at
which the connection with the unlawful search becomes so
attenuated as to dissipate the taint”). Given our disposition,
there is no need for us to address this question either.




                              5
Trooper Hoban’s warrantless search of his home was
unreasonable and violated his rights under the Fourth
Amendment.

        After receiving extensive briefing on White’s motion,
on November 30, 2012 the District Court held an evidentiary
hearing at which both Troopers Hoban and Hill testified.
Trooper Hoban explained that he entered White’s home “to
make sure that there was no one inside the residence,” “just to
see if there were any additional people inside the residence.”
(A85, A89) Hoban stated that he merely undertook “a
cursory sweep of the residence,” “for everyone’s safety
because of a report of a firearm and, also, for myself to
determine that there was no one in need of medical attention
inside the residence.” (A84) According to his testimony, he
searched for people, not evidence, looking only for “an
injured person or a person that could be a threat to myself;”
he did not open drawers or look at papers. (A84-85) Trooper
Hill, who was standing by the police cruiser talking with
White while Trooper Hoban and Samantha walked through
the home, corroborated that Hoban searched only “to make
sure there was no one else inside injured or who was a threat
to us.” (A123)

       White did not call any witnesses. Neither party sought
to argue the motion nor to file post-hearing submissions. The
District Court ruled from the bench and denied White’s
motion.

       Relying on the Supreme Court’s decision in Maryland
v. Buie, 494 U.S. 325 (1990), and our non-precedential
decision in United States v. Latz, 162 F. App’x 113 (3d Cir.
Dec. 27, 2005), the District Court held that Trooper Hoban’s




                              6
search was a lawful “search incident to the arrest,” which did
not require reasonable suspicion in order to be lawful.
(A142-43) Finding Troopers Hoban and Hill “to be most
credible” and “straight shooters, in all respect[s]” (A140; see
also A141-42 (“I credit the testimony of Trooper Hoban and
Trooper Hill . . . .”)), the District Court found that they
encountered a situation “fraught with danger” (A141). In
turn, the District Court concluded that the dispatch report
combined with what Hoban and Hill observed on the scene
gave rise to “a profound objectively-reasonable concern about
their safety.” (A142) Further, the “very limited search
incident to the arrest” was undertaken “with great fidelity to
[the officers’] Fourth Amendment duties,” and “that’s as far
as we need to go here under the jurisprudence.” (A143-44)

                              C

       On January 7, 2013, White pled guilty to the felon in
possession of a firearm charge, expressly reserving his right
to appeal the denial of his suppression motion. On April 5,
2013, the District Court sentenced White to 96 months of
imprisonment. He then timely filed this appeal, solely
challenging the District Court’s denial of his motion to
suppress.
                              II

      The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. §
1291. See generally United States v. Robertson, 305 F.3d
164, 165 (3d Cir. 2002) (reviewing District Court’s denial of
suppression motion following conditional guilty plea).




                              7
       We “review the District Court’s denial of a motion to
suppress for clear error as to the underlying factual
determinations but exercise plenary review over the District
Court’s application of law to those facts.” United States v.
Stabile, 633 F.3d 219, 230 (3d Cir. 2011). White’s appeal
presents solely a question of law: whether it was correct to
apply the analysis of Buie’s “prong 1” to the undisputed facts
relating to the search of White’s home.

                              III

                              A

        The District Court held that the warrantless search of
White’s home was permitted under the first prong of the
Supreme Court’s opinion in Buie, 494 U.S. at 334. We
disagree. White’s arrest did not occur inside the home, but
instead took place approximately 20 feet outside of it. As we
stated in Sharrar v. Felsing, 128 F.3d 810, 824 (3d Cir. 1997),
“a sweep incident to an arrest occurring just outside the home
must be analyzed under the second prong of the Buie
analysis.” Accordingly, for reasons we further explain below,
we will vacate the District Court’s order.

                              B

        “The Fourth Amendment provides in relevant part that
the ‘right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated.’” Florida v. Jardines, 133 S.
Ct. 1409, 1414 (2013) (quoting U.S. Const., amend. IV). “It
is axiomatic that the ‘physical entry of the home is the chief
evil against which the wording of the Fourth Amendment is




                              8
directed.’” Welsh v. Wisconsin, 466 U.S. 740, 748 (1984)
(quoting United States v. U.S. Dist. Court for E. Dist. of
Mich., S. Div., 407 U.S. 297, 313 (1972)); see also Jardines,
133 S. Ct. at 1414 (“[W]hen it comes to the Fourth
Amendment, the home is first among equals.”). Hence, the
Fourth Amendment draws “a firm line at the entrance to the
house,” Payton v. New York, 445 U.S. 573, 590 (1980),
which “must be not only firm but also bright,” Kyllo v.
United States, 533 U.S. 27, 40 (2001).

       A search of a house without a warrant issued on
probable cause is generally unreasonable. See Buie, 494 U.S.
at 331. However, there are several exceptions to the warrant
requirement. In Buie, the Supreme Court articulated two such
exceptions:
                     We . . . hold that as an
             incident to the arrest the officers
             could, as a precautionary matter
             and without probable cause or
             reasonable suspicion, look in
             closets    and      other    spaces
             immediately adjoining the place
             of arrest from which an attack
             could be immediately launched.
             Beyond that, however, we hold
             that there must be articulable facts
             which, taken together with 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.




                             9
Id. at 334. Hence, Buie “prong 1” permits a warrantless
search of a home “incident to an arrest” occurring in the
home, provided that the search is limited to those places
“immediately adjoining the place of arrest from which an
attack could be immediately launched.” Buie’s “prong 2”
authorizes a warrantless search of a home based on
reasonable and articulable suspicion that the areas being
searched may “harbor[] an individual” who poses a danger to
those present at the scene of the arrest. “[R]easonable
suspicion is a less demanding standard than probable cause
and requires a showing considerably less than preponderance
of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123
(2000) (internal quotation marks omitted).


       A warrantless search of a home is also permitted
“when the exigencies of the situation make the needs of law
enforcement so compelling that a warrantless search is
objectively reasonable under the Fourth Amendment.”
Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (internal
quotation marks and alterations omitted); see also United
States v. Coles, 437 F.3d 361, 366 n.8 (3d Cir. 2006). The
government argued in the District Court, and reiterates on
appeal, that Trooper Hoban’s search was justified under Buie
and further by the presence of “exigent circumstances.”

       The District Court limited its analysis to Buie prong 1,
denying White’s suppression motion based on its conclusion
that Trooper Hoban’s warrantless search of White’s home
was a limited and permissible search “incident to arrest,” not
requiring probable cause or reasonable suspicion. We hold
that Buie’s prong 1 exception is not available where the arrest
took place “just outside the home,” just as we stated in




                              10
Sharrar, 128 F.3d at 824. Here, it is undisputed that White
was arrested approximately 20 feet outside of the entrance to
his home. 3 Hence, Buie prong 1 is not available and the
search must be evaluated pursuant to the other exceptions to
the warrant requirement.
                            C

        In Buie, the Supreme Court “decide[d] what level of
justification is required by the Fourth and Fourteenth
Amendments before police officers, while effecting the arrest
of a suspect in his home pursuant to an arrest warrant, may
conduct a warrantless protective sweep of all or part of the
premises.” 494 U.S. at 327 (emphasis added). As we
observed in Sharrar, “[t]he Supreme Court has never had the
opportunity to apply its holding in Maryland v. Buie to
protective sweeps incident to arrests made just outside the
home.” 128 F.3d at 828 (emphasis added). We were
presented with this precise task in Sharrar. After noting that
“those circuits that have addressed the issue have uniformly
held that . . . protective sweeps of the home in such situations
are not per se unreasonable,” id. at 823, we found that our
sister circuits all agreed that “a sweep incident to an arrest
occurring just outside the home must be analyzed under the
second prong of the Buie analysis,” id. at 824.
        We then held:
                        Like our sister circuits, we
                see no reason to impose a bright
                line rule limiting protective
                sweeps to in-home arrests, as we

3
 No evidence was presented to contradict Trooper Hoban’s
testimony that White was “approximately 20 feet” from the
home’s entrance when he was arrested. (A81, 98, 100)




                              11
             agree . . . that “in some
             circumstances, an arrest taking
             place just outside a home may
             pose an equally serious threat to
             the arresting officers.” [citing and
             quoting United States v. Colbert,
             76 F.3d 773, 776 (6th Cir. 1996)]
             Certainly, it would be imprudent
             to prohibit officers who are
             effecting an arrest or waiting until
             a warrant may be obtained from
             ensuring     their    safety     and
             minimizing the risk of gunfire or
             other attack coming from inside
             the home if they have reason to
             believe that dangerous individuals
             are inside. Therefore, in order to
             determine whether the protective
             sweep in question met the
             standard enunciated by the
             Supreme Court in Buie, we must
             consider whether there was an
             articulable basis for a protective
             sweep, i.e., a warrantless search,
             under the circumstances at that
             time.

Id. (emphasis added). Our allusion to “an articulable basis for
a protective sweep” was a direct reference to Buie’s second
prong; no “articulable basis” is required for a search of an
“immediately adjoining” space authorized by Buie prong 1.
We adhere to our holding in Sharrar.




                              12
                               D


       In the District Court, the parties did not frame the issue
as being whether Buie’s first or second prong is applicable in
light of Sharrar. Understandably, then, the District Court
provided no analysis on this point. 4 Even had the District
Court offered a persuasive rationale for us to reevaluate
Sharrar’s holding, only the Court sitting en banc would have
authority to do so. See Pardini v. Allegheny Intermediate
Unit, 524 F.3d 419, 426 (3d Cir. 2008); see also Third Circuit
Internal Operating Procedure (“IOP”) 9.1 (“[N]o subsequent
panel overrules the holding in a precedential opinion of a
previous panel. Court en banc consideration is required to do
so.”).

       On appeal, the government suggests several reasons
why we should apply Buie’s prong 1 to this case. Even were
we not required to do so, we would reject the government’s
reasoning.

      Principally, the government emphasizes the District
Court’s findings as to the danger of the situation confronted
by the officers, and their “profound objectively-reasonable
concern about their safety.” (A141-42) Accepting these


4
 Sharrar was discussed in White’s memorandum of law in
support of his motion (see A29-31), but was not cited at all by
the government in its written response (see A43-57) and was
similarly not mentioned by the District Court in its bench
ruling (A140-44).




                               13
findings, 5 and recognizing that law enforcement personnel
often face such situations and should not have to take
unnecessary risks with their own lives and the lives of others,
these realities do not require extending Buie’s prong 1 to
arrests made outside the home. When an arrest occurs just
outside of the home, the unassailable public policy of
protecting law enforcement officers, as well as victims,
bystanders, and even assailants, is appropriately balanced
with the Fourth Amendment right to be free of unreasonable
searches and seizures by application of Buie’s prong 2.

       The government also argues that Sharrar’s assessment
that the Courts of Appeals uniformly agree as to the
unavailability of Buie’s first prong for arrests outside the
home is no longer correct (and may also not have been correct
when we decided Sharrar). The government directs us to
post-Sharrar opinions from the Fifth, Seventh, and Ninth
Circuits, all of which applied Buie’s prong 1. (See Govt. Br.
at 21-23) None of these opinions, of course, is controlling.
They are also distinguishable, as they did not involve a search
of a home as an incident to an arrest that clearly took place at
a distance outside the home. See United States v. Lemus, 582
F.3d 958, 960-63 (9th Cir. 2009) (arrest occurred either just
after defendant “stepped into the apartment” or when
defendant was only “partially outside the living room” in an
area “immediately adjoining” the living room, permitting the
living room to be searched incident to arrest); Peals v. Terre
Haute Police Dep’t, 535 F.3d 621, 628 (7th Cir. 2008) (arrest
occurred inside garage “immediately adjoining” a room of a
home, permitting search of that room); United States v.

5
We are not called on to determine whether the District
Court’s findings of fact were clearly erroneous.




                              14
Charles, 469 F.3d 402, 405-06 (5th Cir. 2006) (arrest took
place “just at the entrance” to an open storage unit – not a
home – so the storage unit could be searched as an area
“immediately adjacent to the site of the arrest”).

       Finally, the government relies heavily on our non-
precedential opinion in United States v. Latz, 162 F. App’x
113 (3d Cir. Dec. 27, 2005), a case the District Court also
found to be pertinent. (A142) Latz is not binding precedent.
See IOP 5.7. In any event, Latz is also distinguishable, as
Latz’s arrest unfolded as he moved across the threshold of the
home. Unlike Latz, White was not arrested at or across the
threshold of the home, nor in an area that was “immediately
adjacent” to the front door, but rather 20 feet away from his
house.

       Accordingly, we repeat what we held in Sharrar: “a
sweep incident to an arrest occurring just outside the home
must be analyzed under the second prong of the Buie
analysis.” 128 F.3d at 824. 6

                               E

       In its brief, the government contended that, were we to
conclude that Buie prong 1 does not justify the warrantless
search that occurred here, we could affirm the District Court

6
 In Curley v. Klem, 499 F.3d 199, 209-10 (3d Cir. 2007), we
observed that portions of Sharrar relating to qualified
immunity had been abrogated by later precedents. Neither
Curley nor any other precedential opinion of this Court has
altered Sharrar’s authority on the point for which we rely on it
here.




                              15
on the alternative grounds that Buie’s prong 2 or the “exigent
circumstances” exception apply. At oral argument, the
government conceded that, alternatively, it would be
appropriate to remand this case for further proceedings
regarding reasonable suspicion and exigent circumstances.

       We have concluded that a remand is the preferable
approach here. On remand, the District Court will have to
decide if the record is adequately developed to allow it to
assess the applicability of the other exceptions to the warrant
requirement. Even if additional evidentiary proceedings are
unnecessary, we will benefit from having the District Court
analyze these issues in the first instance.

                              IV

       Accordingly, we will vacate the District Court’s order
denying White’s suppression motion and remand to the
District Court for further proceedings consistent with this
opinion.




                              16
