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                                                                                   [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 18-10624
                               ________________________

                      D.C. Docket No. 4:17-cr-00131-KOB-HNJ-1



UNITED STATES OF AMERICA,

                                                                     Plaintiff - Appellant,


                                            versus


ANTHONY MILES YARBROUGH,

                                                                    Defendant - Appellee.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                             ________________________

                                       (June 11, 2020)

Before BRANCH, MARCUS, Circuit Judges, and UNGARO,* District Judge.

BRANCH, Circuit Judge:
*
  The Honorable Ursula Ungaro, United States District Judge for the Southern District of Florida,
sitting by designation.
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       The government appeals the district court’s grant of a motion to suppress

evidence obtained after officers, pursuant to arrest warrants, arrested Anthony

Yarbrough and his wife, secured them outside of their home, and then re-entered

their home to conduct a “protective sweep” without a search warrant. The sweep

revealed two shotguns which led to his charge of being a convicted felon in

possession of a firearm. The government claims that the protective sweep was

justified for officer safety; Yarbrough argues that the district court correctly

granted his motion to suppress. We find that the totality of the circumstances

demonstrates that the officer had a reasonable suspicion that a dangerous person

might have been in the house and that the protective sweep was justified.

Accordingly, we reverse.

                                    I. Background

       Following the seizure of two shotguns in his home, Yarbrough was indicted

on one count of possession of a firearm as a convicted felon in violation of 18

U.S.C. § 922(g)(1). Prior to trial, Yarbrough filed a motion to suppress, which the

district court considered following an evidentiary hearing in front of a magistrate

judge on August 28, 2017. The district court ultimately granted Yarbrough’s

motion to suppress. Because this case primarily turns on the evidence presented at

the hearing and the bases for the district court’s holding, we set out the essential

facts in detail.


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   A. Motion to Suppress Hearing

      At the motion to suppress hearing, Thomas Monroy, an investigator with the

Cherokee County Sheriff’s Office who was present at Yarbrough’s arrest, testified

to the following. He learned of Yarbrough through unverified, anonymous phone

calls and e-mails indicating that there was “a lot of traffic” and “possible” drug

activity at Yarbrough’s house. After he ran a record check on Yarbrough, he found

that Yarbrough had outstanding warrants for his arrest. Monroy attempted to arrest

Yarbrough several times to no avail. On August 31, 2016, Monroy received an

anonymous text message from one of Yarbrough’s neighbors saying that

“[Yarbrough] was home, that everybody was there,” and they had seen Yarbrough

in the yard. The text message did not indicate how many people would be at the

house. Before heading there, Monroy asked Investigator Matt Sims to meet him at

the house.

      When Monroy and Sims arrived at Yarbrough’s address at approximately

5:50 pm, Monroy immediately saw a pickup truck in the driveway and three men,

one of whom was Yarbrough, standing around it. Monroy also testified there was

a second non-police vehicle at the scene. Monroy and Sims placed all three men in

handcuffs on the driveway. All three men were compliant during this process.

None of the men were armed, and a Terry frisk revealed no contraband. One of the

vehicles belonged to Yarbrough. The two other men identified the second vehicle


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as theirs. Monroy asked Yarbrough if his wife Shellie was in the house, since she

also had warrants for her arrest, and Yarbrough affirmed she was.

       As Monroy approached the house, he yelled Shellie’s name and announced

that he was from the sheriff’s office. Through a screen door, Monroy saw her run

out of one room of the house, which he identified as the living room, into a room to

his right and shut the door. Monroy then entered the house and followed her into

the room, which turned out to be a bathroom. 1 When he asked why she ran,

Shellie told him she was using the bathroom, though Monroy did not see any

evidence of that. Monroy placed her in handcuffs and walked her outside to the

others.

       At this point, Monroy did not know if anyone else was in the house, but he

thought that someone “could possibly” still be in there. He immediately went back

inside the home. The officer performed a protective sweep of the house, during

which he noticed two shotguns in the corner of the master bedroom and a mint tin

with a crystal-like substance on a dresser in the bedroom. The sweep took less

than a minute. He took the firearms outside, cleared them, and put them in his

vehicle. He did not disturb the mint tin. Indeed, he did not search any drawers or

closed containers during this brief sweep.



       1
         Monroy testified that, in those types of situations, people may run to a bathroom to hide
or destroy evidence.
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       Monroy testified on cross-examination that he called an additional

investigator, Officer Perea, to help him and Sims during the initial arrest. Monroy

confirmed that the call log also showed that, at 5:55 pm, there was a dispatch call

from him saying that suspects were in custody and that Officer Perea could slow

down. Monroy further testified that, when additional officers arrived, Monroy

received consent from the Yarbroughs to search their home. 2 Investigator Monroy

then called a fourth officer to help aid in the search of the Yarbrough home. A

dispatch call recording, admitted into evidence, indicated that Monroy notified

dispatch at 6:38 pm that he had discovered two shotguns. The execution of the

consent form took place at 6:40, about forty-five minutes after officers arrived at

the Yarbrough home.3

       During Monroy’s cross-examination, in response to a question from the

court, Monroy clarified that he had only received e-mails and phone calls regarding

possible drug activity at Yarbrough’s house before receiving the text message on

the day in question. Upon being asked by the magistrate judge if the anonymous


       2
          The items seized during the second search were the Altoids tin from the bedroom, three
glass pipes, scales, a clear plastic bag holding a crystal-like substance, and a false Pepsi can
containing a spoon. The record does not indicate if the contents of the Altoids can were ever
tested or what the “crystal-like substance” was.
       3
          The timeline described above was testified to during the motion to suppress hearing in
front of the magistrate judge. After the hearing and after the magistrate judge had completed his
R&R, the parties entered by stipulation additional evidence originally published but not entered
at the hearing—as relevant here, the dispatch calls. This new evidence formed the basis for the
district court’s factual findings regarding the timing of events, as detailed below.
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tips indicated the number of people involved, Monroy stated that they indicated a

“lot of traffic in and out.”

       Investigator Sims’s testimony largely corroborated Officer Monroy’s. After

performing the protective sweep, which took “less than five minutes,” Monroy

exited the house with “one or two firearms.” Both Yarbrough and Shellie then

gave Monroy consent to search the whole house, which he did. Sims confirmed

that when they performed pat downs of Yarbrough and the two other males outside

the house, they did not find firearms or evidence of contraband.

       One of the two men with Yarbrough at the scene testified that when the

police arrived, they had their guns drawn and ordered everyone to lie on the

ground. Everyone complied. This man saw the officer bring Shellie outside and

then return to the house for the guns.

       At the end of the hearing, the government argued that both the protective

and the Yarbroughs’ subsequent consent to search were valid. The defense argued

that the officers lacked articulable facts sufficient to justify the search.

   B. Magistrate Judge’s Recommendation and District Court Order

       The magistrate judge’s report and recommendation (“R&R”) recommended

that Yarbrough’s motion to suppress be denied because the protective sweep was

reasonable. In the R&R, the magistrate judge made the following findings of fact.

The deputies arrived at the Yarbrough residence sometime between 5:52 and 5:55


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pm on August 31, 2016. Monroy had Shellie in custody by 5:55 pm. The

protective sweep took approximately one minute. The 5:55 dispatch call to Officer

Perea occurred after the protective sweep. Following the sweep, Monroy emptied

the shotguns and placed them in a police vehicle the yard. The magistrate judge

also noted that Monroy had received several calls and text messages about drug

activity and traffic at the Yarbroughs’ residence, that Monroy approached the

house to arrest Shellie on a valid arrest warrant, that Shellie ran into an unknown

room after the officer called her name, and that there were two additional men in

the yard. In light of these factual findings, the magistrate concluded that the

officers had a reasonable fear of someone dangerous remaining in the house and

performed a valid protective sweep, given circuit precedent regarding the

appropriateness of protective sweeps in the context of drug activity when police

believe other parties occupy the residence. See United States v. Hollis, 

, 1069 (11th Cir. 2015) (holding that protective sweep was justified where

premises of arrest “was a ‘drug house’ that could hold ‘other occupants’”). The

magistrate judge summarized his rationale as follows:

      The deputies possessed information the Yarbroughs’ residence
      exhibited “lots of” drug activity and traffic. Two other individuals,
      one of whom owned one of the cars at the scene, occupied the yard
      upon the deputies’ arrival. Moreover, Mrs. Yarbrough spouse [sic] ran
      to a then-unknown room upon Investigator Monroy calling her name.
      These circumstances buttress a rational inference that other
      individuals may have occupied the residence and could have


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      jeopardized the safety of the officers or the public. Therefore,
      Investigator Monroy was justified in conducting his protective sweep.

Because the protective sweep was justified, the magistrate judge

recommended denying the motion to suppress, as the shotguns were seized

in plain view during the course of the sweep. The magistrate judge also

recommended that the motion to suppress be denied because the Yarbroughs

“voluntarily and freely” consented to a search of their home.

      Yarbrough objected to the magistrate’s R&R. Yarbrough argued that there

were not sufficient articulable facts to justify a reasonable officer believing

additional dangerous individuals could be inside the Yarbroughs’ home.

Yarbrough summarized what he believed problematic with the district court’s

recommendation in the following way:

      The Report and Recommendation misapplies the Buie standard in
      several ways. First, it finds that unverified, anonymous tips can rise to
      the level of reasonable suspicion, in violation of Florida v. J.L., 

, 268 (2000) (holding that anonymous tip that a person is
      carrying a gun is not sufficiently reliable to justify police officer’s
      stop and frisk of that person). Second, it allows the government to rely
      on generalizations about drug dealing to meet its burden, rather than
      requiring individualized suspicion. Third, it cites as its primary
      precedent United States v. Hollis, 

(11th Cir. 2015), a
      case with significant factual distinctions. Lastly, it fails to consider the
      totality of the circumstances at the time that the officers decided to
      search the home.

Yarbrough also argued that his consent was invalid as a product of the illegal

protective sweep.


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       The district court rejected the R&R and issued an order granting the

defendant’s motion to suppress. The district court accepted the factual findings of

the magistrate judge except in two instances. First, the court found that

“Investigator Monroy could not have completed the protective sweep before

making the 5:55 pm dispatch call” to Perea. 4 Second, the court found that the

anonymous tips alleged “lots of traffic,” which indicated “possible drug activity,”

but not “lots of drug activity.”5 (emphases omitted). After examining the

numerous anonymous tips about a lot of traffic indicating “possible” drug activity

at the Yarbrough house, the outstanding warrants for the Yarbroughs’ arrests, the

anonymous tip that Mr. Yarbrough and “everyone” was at the house on the day of

the arrest, the number of vehicles outside the house when the police arrived, the

compliant nature of the unarmed men detained outside the house, the lack of

weapons or contraband on the fleeing Mrs. Yarbrough, the call made by Officer

Monroy to tell the officer en route that there was no need to rush and the timing of


       4
         The district court noted that the time of the events at the Yarbrough residence was
“unclear.” The court relied heavily on the dispatch calls, which showed that the investigators
arrived at the Yarbrough residence at 5:53 pm. Two minutes later, the call log showed that
Monroy radioed Officer Perea, the backup officer, to say “We’ve got the suspects in custody,
you can slow down.” The court found that the officers could not have arrived on scene, arrested
Yarbrough, handcuffed the men in the yard, gone to the house, retrieved Shellie from the
bathroom, brought her outside, and then conducted the protective sweep all before making the
5:55 call to say to Perea “you can slow down.”
       5
          For this finding, the court relied on Monroy’s characterization of the tips as reporting “a
lot of traffic in and out” of the Yarbrough home and “possible” drug activity, rather than “a lot of
drug activity.”


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the protective sweep in relation to that call, the district court held that Monroy’s

fear of danger was subjectively non-existent and objectively unreasonable. The

district court also held that the “illegal” protective sweep tainted the Yarbroughs’

consent to search. For these reasons, the district court denied the motion to

suppress.

      The district court denied the government’s motion for reconsideration which

requested a supplemental evidentiary hearing for the government to present

additional information on (1) when Investigator Thomas Monroy conducted the

protective sweep of Yarbough’s house; (2) the accuracy of the timestamps on the

audio and dispatch logs; (3) the location of the vehicle where Investigator Monroy

placed the guns; and (4) whether Yarbrough could see the guns when he gave his

consent for the investigators to search his home. This appeal followed.

                                II. Standard of Review

      “Because rulings on motions to suppress involve mixed questions of fact and

law, we review the district court’s factual findings for clear error, and its

application of the law to the facts de novo.” United States v. Bervaldi, 

, 1262 (11th Cir. 2000). “Further, when considering a ruling on a motion to

suppress, all facts are construed in the light most favorable to the prevailing party

below.”

                                    III. Discussion


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      The Fourth Amendment safeguards the rights of the people to be free from

unreasonable searches and seizures. U.S. Const. amend. IV. A search conducted

in the absence of a search warrant is, usually, presumptively unreasonable. Groh v.

Ramirez, 

, 559 (2004). One exception to this rule 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, 

, 327 (1990). The sweep must be “narrowly confined to a cursory visual

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

a valid arrest may conduct a protective sweep. See

United States v. Yeary, 

, 579 (11th Cir. 2014) (“Law enforcement

officers are permitted, in the context of a valid arrest, to conduct a protective

sweep of a residence for officers’ safety.”). To justify a protective sweep beyond

the immediate location of the arrest, officers must have reasonable suspicion “that

the area to be swept harbors an individual posing a danger to those on the arrest

scene.” 

. Reasonable suspicion is an analysis of “the totality

of the circumstances—the whole picture.” United States v. Sokolow, 

, 8

(1990) (quoting United States v. Cortez, 

, 417 (1981)). “Whether or

not a Fourth Amendment violation has occurred depends upon objective

reasonableness in light of the facts and circumstances.” United States v. Hromada,

, 691 (11th Cir. 1995).


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       Here, the officers were executing valid arrest warrants and thus had

authority to enter the Yarbroughs’ home. See 

. Our sole

concern, then, is whether the facts known to the officers gave rise to a reasonable

suspicion that a dangerous individual was located inside the house. Because our

review is of the totality of the circumstances, our analysis regarding the validity of

the protective sweep must take into account “the whole picture.” 

; see also 

(noting that a protective sweep is justified

by the “circumstances” surrounding it); United States v. Tobin, 

,

1513 (11th Cir. 1991) (upholding a sweep based on multiple circumstances the

officers encountered); United States v. Chaves, 

, 692 (11th Cir. 1999)

(finding a protective sweep not warranted under a totality of the circumstances).

We find the facts of this case, viewed in their entirety, show that the officers had a

reasonable, objective apprehension for their safety sufficient to justify a protective

sweep.

       First, numerous anonymous tips suggested that the house was heavily

trafficked and a source of possible drug activity.6 While the district court correctly



       6
          The district court noted the distinction between “possible drug activity” with “lots of
traffic” and “lots of drug activity” when concluding the officers did not have an objective reason
to conduct a protective sweep. To the extent there is a significant difference between the
“possible drug activity with lots of traffic” and “lots of drug activity,” we note that we have not
required police to be certain of drug activity or the extent of that activity when deciding to
conduct a protective sweep. See, e.g. 

.

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noted that unverified tips standing alone cannot provide reasonable suspicion, 

, we have said that an officer’s understanding about the situation he

or she is entering can be supported by anonymous tips. For example, we have

stated that “officers on the scene had reasonable cause to believe they were

entering a volatile and potentially dangerous situation” in part because of a “prior

report of gunshots” from an anonymous source. United States v. Holloway, 

, 1340 (11th Cir. 2002). Here, the tips supported an inference that the

Yarbrough’s home was a source of possible drug activity.7 It is uncontroversial

that drug activity can cause a rational officer to fear that (a) multiple people are

involved, and (b) weapons to protect the drugs may be present. We said as much

in another case upholding a protective sweep:

               The district court found that the officers suspected that
               the apartment was a “drug house” that could hold “other
               occupants.” One of the officers testified that he had been
               told that the apartment was a “drug house,” with a “high
               level of activity,” where “people [were] in and out of the
               house all hours of the day or night,” and that they “could
               expect to encounter a number of people inside.” Based on
               that information, the officers could draw the “rational
               inference,” 

, 110 S.Ct. at 1098, that
               there might be armed individuals inside the apartment.



       7
          We also note that, at least to some extent, the tip that “everyone” was present at
Yarbrough’s house was corroborated—there were additional men and Yarbrough’s wife on
scene. This corroboration strengthens the weight which may be put on the anonymous tips in a
totality of the circumstances review. See Illinois v. Gates, 

, 243, 527 (1983)
(finding partially corroborated tip relevant in a totality of the circumstances analysis for probable
cause to issue a search warrant).
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(alterations in original). It is true, as the district court

noted, that Hollis concerned a situation with more certain and higher-volume drug

activity and traffic than at the Yarbrough residence. See

Hollis, the

information about the drug activity was the only factor the court used to justify the

protective sweep. See

contrast, the officers had multiple reasons to be

cautious, such as the presence of vehicles, additional men on the scene, and the

errant behavior of an arrestee, which are further analyzed below.

       Second, the presence of two vehicles at the residence suggested that multiple

people could be present in addition to those located in the driveway with Mr.

Yarbrough. 8 See 

(“The fact that there were three vehicles

on the scene coupled with [a suspect’s] lying about [another suspect’s] presence

clearly gave rise to a reasonable belief that someone else could be hiding in the

house.”); United States v. Williams, 

, 1202 (11th Cir. 2017) (per

curiam) (“The layout of the property, the close proximity of the outbuilding to the

main residence, the noise indicating drug distribution activities might be occurring

on the property, and the fact that three cars were parked in the driveway all

suggested that there may be more people present on the premises . . . .”); Bervaldi,



       8
         We note that, while the district court found the presence of the two cars made this issue
a “close call,” it nonetheless held that this case lacked the “additional information” required in
our case law. As there is “additional information” in this case, i.e., the anonymous tips,
suspicious behavior of Shellie, and additional men outside, we need not decide whether the mere
presence of multiple vehicles, standing alone, is ever sufficient to justify a protective sweep.
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(“The fact that vehicles were parked at the residence only

buttresses the belief that persons were at the house . . . .”). The officers were

already aware that additional people were on the property because of the two men

standing with Yarbrough. This fact, coupled with the multiple cars and the tips

about “everyone” being there, indicated a real possibility that additional people

were inside the home.

      A third factor supporting a reasonable suspicion that dangerous persons

might be hiding in the house is that Yarbrough’s wife Shellie fled to the bathroom

when Officer Monroy called her name. Evasive or furtive behavior can factor into

an officer’s determination of reasonable suspicion. See Illinois v. Wardlow, 

, 124 (2000) (collecting cases where the Court has “recognized that

nervous, evasive behavior is a pertinent factor in determining reasonable

suspicion”); see also 

(highlighting the fact that defendant

lied to the officers as suggestive that someone else could be in the house); United

States v. Gordon, 

, 756 (11th Cir. 2000) (characterizing flight as

“powerful evidence” of criminal activity when conducted in an area known to host

high levels of criminal activity); United States v. Caraballo, 

, 1225

(11th Cir. 2010) (finding defendants’ nervous demeanor and evasive movements

justified a protective sweep). And we have held in another case that flight into an

unknown area can be a part of the justification for a protective sweep. See United


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States v. Delgado, 

, 1501, 1503 (11th Cir. 1990) (suspect running

into warehouse gave officers reason to enter warehouse, arrest suspect, and

perform protective sweep). Further, Monroy testified that this evasive behavior

was consistent with an attempt to destroy evidence, particularly drugs. Shellie’s

flight, therefore, was additional corroborating information to the anonymous tips.

      In sum, the officer in the present case knew specific and articulable facts

which, viewed in the totality of the circumstances, gave rise to a reasonable

suspicion justifying a protective sweep. The multiple cars indicated multiple

people on the property; the tips about the drugs indicated multiple people who may

have had access to weapons; and Shellie’s refusal to follow police directions

indicated that, if other people were in the house, they might have likewise been

non-compliant.

      As a final point, we note that the sweep lasted approximately one minute and

was limited in scope. The brevity of the sweep is a point in favor of its

justification. 

(“There is no evidence that the officers

opened drawers or that the sweep of the house was overextensive. In fact, the

sweep was short; it lasted only about a minute.”); see also 

(“Further, the record does not suggest that the sweep was anything other than

a limited protective sweep; [the officer] simply opened the door to the one large

concealed living area of the boat where another person easily could have been


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hiding.”); 

(“Moreover, the sweep was limited in scope; it

was only coincidental that one of the deputies discovered contraband in plain view

while conducting the sweep.”). Here, Officer Monroy took less than a minute

looking inside the Yarbroughs’ home. See 

(finding a

protective sweep proper where it lasted “no longer than necessary” and was “no

more than three to five minutes”). There is no evidence in the record that the

officer searched areas other than where he might reasonably find a person hiding.

Compare with United States v. Rodgers, 

, 222 (11th Cir. 1991) (where

officer entered a trailer simply to collect contraband and then immediately left,

search could not be upheld as a protective sweep). Thus, the sweep was

proportionate and reasonable.

      Yarbrough cites Chaves to argue that the sweep was unjustified. In Chaves,

officers involved in a narcotics sting operation were tasked with arresting a drug

suspect. See 

. The officers arrested Chavez outside a

warehouse, and shortly afterwards arrested two men who exited the warehouse

carrying firearms. See

the circumstances surrounding a

subsequent search as follows:

      The door of the warehouse was locked and none of the keys taken
      from [the arrestees] could open the warehouse. The agents at the
      warehouse then waited approximately forty-five minutes outside the
      warehouse with [the arrestees] in custody. At this time, the agents at
      the warehouse, who had been joined by those arresting Chaves,
      conducted a warrantless entry of the warehouse, which was opened by
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       “jimmying” the door using a knife blade. During the sweep of the
       warehouse, which lasted approximately five to ten minutes, the agents
       saw boxes similar to those found in the van.

that a search conducted in this manner in this situation was not

a valid protective sweep. In Chavez, the lengthy delay between the arrests

and the sweep of the warehouse made it clear that the agents saw “no

immediate need to enter the warehouse to protect themselves or other

persons in the area.” 

; see also 

(finding a seizure of a weapon was not a protective sweep because the

officer did not act as though he was conducting a protective sweep—he

merely entered the home, seized guns, and stepped outside without making

“any inspection of the rest of the premises”). In contrast, the officer in this

case immediately swept the house following the execution of the arrest

warrants.

       Yarbrough also argues that Chaves requires the officers to demonstrate that

they actually possessed a reasonable fear of dangerous individuals inside the

home—something the district court relied on in its analysis.9 We re-emphasize


       9
         In reaching the issue of the officer’s subjective belief, the district court noted that
“[n]either Investigator Monroy nor Investigator Sims testified that they actually believed anyone
other than Mrs. Yarbrough was inside the house, dangerous or not.” This conclusion is not
supported by the record as Monroy testified that he thought someone “could possibly” have been
in the house. The magistrate judge explicitly “accept[ed] Investigator Monroy’s testimony that
he entered the residence briefly for the deputies’ safety.” The district court rejected this finding
pointing to other circumstances surrounding the sweep, but notably never heard the testimony of
the witness live before rejecting his credibility. See United States v. Cofield, 

,
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that the thrust of the protective sweep analysis is objective—whether the officers

had a reasonable suspicion that the area to be swept harbors an individual posing a

danger to them or others on the scene. 

. And Chaves applied

that standard, finding that the officers’ actions, in failing to execute the sweep

immediately, objectively proved that there was no danger to the officers. See

. Here, by contrast, the protective sweep was immediate—

Officer Monroy escorted Shellie outside so Officer Sims could watch her and then

“immediately” returned inside the house. See United States v. Beale, 

, 1432 (11th Cir. 1991) (finding a protective sweep valid in part because it

was undertaken “immediate[ly]” after the arrest).

                                        IV. Conclusion

       Viewing the totality of the circumstances of this case, the officer’s protective

sweep was justified.10 We thus reverse the district court’s order granting the

motion to suppress and remand for further proceedings consistent with this

opinion.

       REVERSED and REMANDED.


1306 (11th Cir. 2001) (noting that “generally a district court must rehear disputed testimony
before rejecting a magistrate judge’s credibility determinations” except in the “rare case where
there is found in the transcript an articulable basis for rejecting the magistrate’s original
resolution of credibility and that basis is articulated by the district judge”) (quotations and
alterations omitted); Amlong & Amlong, P.A. v. Denny’s, Inc., 

, 1250 (11th Cir.
2007).
        10
           Because we find that the protective sweep was justified, we need not reach the issue of
whether the Yarbroughs’ consent to search was valid.
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UNGARO, District Judge, dissenting:

      I respectfully dissent, although I acknowledge that the facts amount to a

close case.

      Clearly, law enforcement officers have the authority to conduct protective

sweeps of residences in conjunction with valid arrests when they have an

objectively reasonable belief that the area to be swept harbors an individual posing

a danger to those on the arrest scene. See Maryland v. Buie, 

, 334-35,

, 1098-99, 

(1990).

      Here, the Magistrate Judge found that the following facts amounted to

reasonable suspicion: (1) Officer Monroy had received anonymous tips that there

was “lots of” drug activity and traffic at the Yarborough residence; (2) when the

deputies arrived, they saw two vehicles, and Yarborough and two other men in the

yard; and (3) Mrs. Yarborough ran into an unknown room upon one of the officers

calling her name from outside the house. But nothing at the scene of the arrests

corroborated the tips, the pat-downs of the men yielded no contraband or weapons,

and the officer who conducted the sweep saw and heard nothing indicating that

anyone was concealed in the house when he was inside to arrest Mrs. Yarborough

or at any other time prior to the sweep. Also, while the officers went to the

Yarborough residence to execute arrest warrants, the record is silent with respect to

why the warrants were issued.


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      In my assessment, these facts might support a subjective concern -- but not

an objectively reasonable belief -- that someone dangerous remained in the house.

See United States v. Chaves, 

, 692 (11th Cir. 1999) (“[I]n the absence

of specific and articulable facts showing that another individual, who posed a

danger to the officers or others, was inside the warehouse, the officers’ lack of

information cannot justify the warrantless sweep in this case.”); United States v.

Delgado-Perez, 

, 254 (1st Cir. 2017) (holding that a protective sweep

was unlawful because “there were not articulable facts—even when considered as

a whole—supporting the presence of another individual in [the defendant’s]

residence”); United States v. Gandia, 

, 264 (2d Cir. 2005) (“Officers

must point to facts that give rise to an individualized suspicion and cannot rely

solely on generalizations that suspects are usually accompanied by dangerous third

parties.”); United States v. Akrawi, 

, 420 (6th Cir. 1990) (holding that

a protective sweep was unreasonable, in part, because “[t]he searching officers

articulated no specific basis for believing that the second floor of [the residence]

harbored any individual posing a threat to the agents”).

      While the evidence is that the three men and Mrs. Yarborough were secured

near the porch of the house and, as emphasized by the majority, Officer Monroy’s

re-entry was swift and his search was cursory, the only conclusion I can reach from

the record is that Officer Monroy made the sweep, no doubt for officer safety,


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because the arrest scene was proximate to the house and he had a concern that the

house, like any structure, could have concealed the presence of a dangerous

individual. In other words, Officer Monroy conducted the sweep based on

speculation, rather than articulable facts. See United States v. Carter, 

, 1242-43 (10th Cir. 2004) (“[T]here could always be a dangerous person

concealed within a structure. But that in itself cannot justify a protective sweep,

unless such sweeps are simply to be permitted as a matter of course, a result hardly

indicated by the Supreme Court in Buie.”); see also United States v. Serrano-

Acevedo, 

, 460 (1st Cir. 2018) (holding that an assumption based on

“unfounded speculation” was inadequate to establish an articulable basis to believe

that a third party would be inside a home); United States v. Colbert, 

,

778 (6th Cir. 1996) (“Lack of information cannot provide an articulable basis upon

which to justify a protective sweep.”).

      The District Judge rejected the Magistrate Judge’s Report and

Recommendation and granted the motion to suppress finding that the Government

failed to prove that the protective sweep met “constitutional muster.” I would

affirm.




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